It’s that time of year again! As frequent readers of this blog know, June is the month of heavy-hitting Supreme Court cases. The Court’s term ends at the end of June, and the Court rarely carries cases over from one term to another, so the Court stops hearing arguments and focuses on writing/issuing the big decisions once June starts.
The Court will probably issue its opinion in Fisher soon—more on that later (but here are some of my thoughts on the case). The Court will probably issue its opinions in the DOMA and Proposition 8 cases at the end of this month. So, it’s time for me to get a prediction on record.
Let’s start with a brief review of the safe bets in terms of how justices will vote. Keep in mind that the justices don’t declare their positions in advance, so nothing is certain, but certain justices are viewed as very safe bets to vote one way or another in high profile cases like this one.
THE OPPONENTS OF SAME-SEX MARRIAGE
Justices Scalia, Thomas and Alito are all very likely to vote to uphold DOMA and Proposition 8. In 2003, Scalia and Thomas both voted to uphold a state law banning homosexual sex. If they believe homosexual sex can be constitutionally banned, it would be shocking if they were to believe that homosexual marriage cannot be constitutionally banned. Justice Alito, appointed by President George W. Bush, is of much the same ilk.
THE PROPONENTS OF SAME-SEX MARRIAGE
Justices Ginsburg, Breyer, Kagan and Sotomayor are all likely to vote to strike down DOMA and Proposition 8. The most interesting of these four is probably Justice Ginsburg, who has at times suggested that Roe v. Wade had unfortunate consequences, in polarizing the electorate by removing the abortion issue from the democratic process. One could imagine that she might have similar concerns about removing the same-sex marriage issue from the democratic process, thereby hesitating to hold in the Proposition 8 case that there is a right to same-sex marriage in all 50 states. But Ginsburg is a liberal stalwart of the Court. I find it hard to imagine that Justice Ginsburg could allow herself to be the only vote standing between same-sex couples and the right to marry. It is probably more likely that she writes a separate opinion pointing out her concerns about removing the issue from the democratic process, but expressing the reasons why she believes that concern is overcome in this case.
CHIEF JUSTICE ROBERTS
The Chief Justice is a likely opponent of same-sex marriage in both cases. I hesitate to say that, because Roberts has shown in the past that he cares about how history regards him, and it seems to me that the same-sex marriage issue is similar to the civil rights issues of 50 years ago. The supporters of Jim Crow are not treated kindly by historians today. Historians in 50 years might see supporters of the traditional definition of marriage in a similar way. That consideration would seem to put Roberts in the pro-same-sex marriage category.
But there are too many problems with using that line of reasoning to rely on it. The line of reasoning relies on two assumptions: 1) Roberts cares how social-justice historians regard him, and 2) Roberts agrees that society in 50 years will overwhelmingly support same-sex marriage. Most of the evidence in support of the first assumption comes from Roberts’ vote in last year’s Obamacare case, in which he provided the swing vote to uphold the statute. But that was only one case. It is possible that Roberts did not care about historians at all and really is a big believer in the importance of the federal government’s taxing and spending power. Or, perhaps Roberts believes that the integrity of the Supreme Court is important and wanted to avoid a party-line vote in a politically-charged case (an interest that doesn’t apply as much in the same-sex marriage cases). The second assumption is also tenuous. Roberts might view the same-sex marriage issue as being more like the abortion issue than the civil rights issues of the 1960s. If that is the case, he might think that historians will treat him better if he stands up for what he believes is the correct legal decision at a time when there was a lot of pressure to conform to a changing political environment.
Also, Roberts’ comments during the oral arguments of these cases strongly suggests that he is an opponent of same-sex marriage. During the DOMA argument, he repeatedly made thinly veiled strategic comments designed to persuade Justice Kennedy not to strike down DOMA on federalism grounds (more on that in part 2). During the Proposition 8 argument, Roberts articulated the central argument of the opponents of same-sex marriage as his own.
So, the safe money is on the Chief Justice voting with the opponents of same-sex marriage in both cases. But that is by no means a sure thing. He might want to avoid the issues due to the historical significance and be inclined to hold that the Court doesn’t have jurisdiction. He could also surprise everyone and support same-sex marriage.
But both cases will probably come down—as usual—to the swing vote, Justice Kennedy, about whom part 2 of this post will be about.