Kennedy's way

In March 2013, when the Supreme Court heard arguments over the federal Defense of Marriage Act (DOMA) in United States v. Windsor, only nine states had legalized same-sex marriage. Now, mostly due to court rulings striking marriage laws based on the Windsor decision, same-sex marriage is legal in 36 states.

The Supreme Court now has agreed to decide whether same-sex marriage should be legal in all 50 states, with arguments this spring and a decision in June. The prospects for the remaining state marriage laws are not good. The signs are relatively clear given swing vote Justice Anthony Kennedy’s past rulings on gay rights and the court’s decisions this past fall: Over and over the court declined emergency stays on rulings that struck down state marriage laws.

The high court agreed to take up four consolidated cases from the 6th U.S. Circuit Court of Appeals, which is the only circuit so far to have ruled in favor of state marriage laws. The 6th Circuit, in a 2-1 ruling last fall, said that voters rather than the courts should decide the issue of same-sex marriage.

“Our judicial commissions did not come with such a sweeping grant of authority, one that would allow just three of us—just two of us in truth—to make such a vital policy call for the thirty-two million citizens who live within the four States of the Sixth Circuit: Kentucky, Michigan, Ohio, and Tennessee,” wrote Judge Jeffrey Sutton in the 6th Circuit decision.

Justice Kennedy was clear: Gay marriage gave gay people ‘dignity in the community equal with all other marriages.’

The 6th Circuit was the only circuit to read Windsor as a ruling based chiefly on states’ rights rather than equal protection. Justice Kennedy used both arguments when he wrote the Windsor ruling. He struck down DOMA based on states’ rights to create their own marriage laws but also wrote that DOMA was discriminatory to legally married gay couples.

Lower courts that have struck down state marriage laws over the last year have based their rulings on that second part, Windsor’s equal protection language that describes DOMA as treating same-sex marriages as “second tier marriages.” And the Supreme Court repeatedly declined to intervene in those lower court rulings.

Lawyers arguing in favor of state marriage laws focus instead on the states’ rights language. Peter Breen, a constitutional lawyer whom the state of Illinois commissioned to defend its marriage law, said the Supreme Court will be “getting into policymaking” if it declares gay marriage legal nationwide.

“In Windsor the court stated that marriage was a state sovereignty issue,” said Breen. “In order to reverse the 6th Circuit, it has to reverse itself in Windsor.”

But the state sovereignty argument seems unlikely to overpower the equal protection argument given Kennedy’s past opinions in favor of gay rights—Windsor, Lawrence v. Texas, and Romer v. Evans—which focused on the “animus” toward homosexuals in laws. Lawrence and Romer struck down laws that criminalized sodomy, but in Windsor Kennedy addressed marriage for the first time.

Kennedy was clear in that ruling that gay marriage gave gay people “dignity in the community equal with all other marriages.” Rick Garnett, constitutional law professor at the University of Notre Dame Law School, thinks that language about “dignity” shows Kennedy would not rule in favor of state marriage laws.

“In my view, it is not at all likely that Justice Kennedy would sign or author an opinion that did not follow Windsor through to its logical conclusion,” said Garnett. “My impression is that he takes a fair bit of interest in what people call his ‘legacy’ and in his own image of himself as a principled libertarian.”

Breen added the critical disclaimer to such speculation: “As attorneys we are trained not to give weight to decisions the Supreme Court has not made.”