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.