With news of today’s Tenth Circuit 2-opinion holding Utah’s ban on same-sex marriage unconstitutional, I think it useful to revisit the debate I had with Adam Liptak last term over timing. Here’s what I wrote in Court Due to Make a Second Trip Down the Aisle, Reuters Opinion, July 16, 2013:
Near the end of his engaging and informative e-book on the Supreme Court’s recent same-sex marriage decisions, To Have and To Uphold, New York Times reporter Adam Liptak makes a prediction: “The day will come when the constitutional question [over the constitutionality of a ban on same-sex marriage] will return to the Supreme Court for some final mopping up, perhaps when the number of states still banning same-sex marriage has dwindled to a score or fewer.”
Though I agree with much of Liptak’s book, I think he’s wrong on this particular prediction: The constitutionality of bans on same-sex marriage will return to the Supreme Court sooner rather than later — and it will happen while more than a score of states still ban the practice. What the court does then is anyone’s guess….
If history is any guide, lower courts will divide over the constitutionality of such bans. Some courts may follow the lead of that part of Justice Anthony Kennedy’s opinion in the Defense of Marriage Act case, seeing same-sex marriage bans as driven by unconstitutional animus toward LGBT people.
Other courts may follow the lead of the other part of Kennedy’s opinion in the DOMA case, seeing the issue of same-sex marriage as one properly left for each state to decide. The lower courts will decide whether Kennedy’s gay rights psyche is stronger or weaker than his federalism psyche.
Within a few years, these cases will start percolating back up to the Supreme Court. Especially if lower courts split over the question of the constitutionality of same-sex marriage bans, it will be hard to see how the court avoids deciding the question.
Liptak, in his e-book, says it is “awfully likely” the four most conservative justices were the ones who voted to hear the challenge to California’s Proposition 8, “making a calculation that their chances of winning would not improve with time.” The court ultimately ducked the constitutional issue in that case, finding that the law’s defenders didn’t have legal standing to defend the case.
Liptak is right that time is not on the side of marriage equality opponents. But if the case reaches the Supreme Court while Kennedy remains the deciding vote, it is anyone’s guess whether red state same-sex marriage bans will bite the dust or whether federalism will win the day yet again.
There is one way in which this analysis was certainly wrong—so far there has been no divide in these cases—and one way in which I was likely wrong: I think Justice Kennedy is likely now a firm vote for a constitutional right to same sex marriage. This seems to be his legacy.
If that’s right, that means that even without a circuit split, the four liberals on the Court could well vote to take case case while Kennedy is still on the Court. And the conservatives too seem like they would not be able to resist making their “last stand” on the issue—after all, time does not appear to be on their side.
Originally posted on Election Law Blog.
Professor Richard L. Hasen is Chancellor’s Professor of Law and Political Science at the University of California, Irvine. Hasen is a nationally recognized expert in election law and campaign finance regulation, and is co-author of a leading casebook on election law.
And then it’s all over, bitches! Haters, get ready to grab your ankles!!
Though this may be Kennedy’s legacy, IF SCOTUS takes up this case, I think it will be written by Roberts. Knowing that marriage equality is inevitable, he will not pass up the chance to try to burnish the illusion of his reasonableness by voting with the majority and assigning the drafting of the opinion to himself.
But I say “if” because there is still a chance that SCOTUS will simply not accept cert. on these cases, at least until some court creates a conflict between circuits. With each affirming lower court decision, it becomes harder for the next judge to be the martyr for the cause and stand in the doorway, Wallace-like, to try to block the march of history. Although I suspect personalities will trump precedent - the four most liberal Justices will vote to accept, because “enough is enough.” Even if Kennedy continues to waiver, Scalia will vote to accept it, not with any hopes of preventing marriage equality, but purely for his own hate-filled ego and the opportunity to once again rail against the immorality of homosexuality.
Exactly how I see it. Roberts will jump on for the big win and claim to be the team captain.
" . . . the four liberals on the Court could well vote to take case case while Kennedy is still on the Court."
I really do laugh when I hear people talk about the “Liberals” on the Court. Who would those be, Prof. Hasen? First of all, the idea of a “Liberal” and a “Conservative” in the context of the law is not the same as it is in politics. One can have a very liberal judicial philosophy but still be a conservative politically, and visa versa. With that being said, under no reasonable analysis are there four “Liberals” on the Court. At best, there are two: Kagan and Ginsberg.
What we do have, however, are five conservative justices. There can be no denying that. I suppose then, the temptation is to call the others “Liberals”, but that does not make it so.
Given the number of lower decisions going in favor of marriage it is true that the Supreme Court could dodge the issue, simply observing that there is no conflict. However, if several of the states appeal the decisions, and others chose to ignore what “their circuit” ruled in the case of another state, the court may not really have a choice.
I, too, tend to believe that Roberts might go against the grain and join the majority simply to write the decision. If so, I suspect he’d write a pretty lukewarm endorsement of the idea.
A bigger issue, that hasn’t been directly confronted yet (to my knowledge) is the question of reciprocity. If the court were to decide it’s up to the states there remains the question of “we got married legally, but moved and now our new state won’t recognize our marriage.” THAT might force the court to take up the issue, if only to resolve that problem. They would be hard pressed to deny cert on that one regardless of the main issue.