TPM Reader JO gives us his read on how and when the Supreme Court will make its will heard on the seemingly inevitable judicial consensus in favor of same sex marriage rights under the US Constitution …
It’s hard to see how SCOTUS doesn’t take a case and provide a definitive answer within the next couple of terms. The current crop of district court cases are going to start producing circuit court opinions within the next year, and one of two things will happen then: either there will be the same kind of unanimous endorsement of marriage equality that we’re seeing at the district level, or there will be a circuit split – a unanimous rejection of equality seems extremely unlikely.
If there’s a split, it’s hard to imagine SCOTUS sidestepping the issue for long, as they usually resolve such lower-court disagreements even on legal issues of far less import. If there’s unanimity, they won’t have that pressure to take a case, but then another dynamic will come into play: unless all of the opponents of marriage equality give up the fight, some of them will still be asking the Court to accept appeals of the circuit court rulings against them – and it will only require the votes of only four Justices to grant such a request.
If Justices Ginsburg, Breyer, Sotomayor, and Kagan sense that Kennedy would rejoin them to extend the principles of Windsor to a broader rejection of same-sex marriage bans, they’d have an incentive to vote for review. They wouldn’t have to worry that the Court would be getting ahead of society or the lower courts, and so it might seem like a much easier call than it would have been even in the days and weeks afterWindsor was decided.
If that’s right, the most likely scenario for SCOTUS to avoid ruling on the issue would be if opponents of same-sex marriage read the tea-leaves in the same way and unanimously decide that their best option is to postpone the inevitable by not asking for Supreme Court review. That way, they can keep fighting the issue state-by-state and circuit-by-circuit and hope to preserve marriage bans in some states for as long as possible. But even that kind of rear-guard action doesn’t seem like a particularly viable strategy: assuming opponents of marriage equality could achieve that sort of unanimity, they’d still be in a bind.
If the losing streak continues, marriage equality will keep picking up steam (imagine the weight of precedent for the judge in the last state to ban same-sex marriage after 49 states go the other way) and eventually be the law in every state. And of opponents do manage to break the schneid in one district – and then win the appeal in a circuit court – the losing proponents of same-sex marriage will have a circuit-split to take to SCOTUS. By that point, public opinion and precedent will weigh even more heavily in favor of marriage equality, and it will be that much harder to sway Justice Kennedy away from a further strengthening of civil rights for same-sex couples.
Of course, a delaying tactic could have the goal of waiting for a GOP president to appoint a conservative replacement for a liberal Justice who would tip the balance against marriage equality. But that assumes that the Republicans (if they get the opportunity) would want to appoint such a Justice rather than get past an issue that is becoming a political albatross as quickly as possible. All in all, it seems that all of the incentives favor the case going up to SCOTUS and getting a definitive ruling sooner rather than later.