Wednesday's landmark decision by a federal court that California's ban on same-sex marriage violates the U.S. Constitution begins to pave the way for an eventual Supreme Court decision on marriage equality. How will the Supreme Court rule?
When the California case was first filed by the all-star legal team of Ted Olson -- who argued Bush v. Gore for George W. Bush and then became his Solicitor General -- and David Boies -- who, ironically, represented Al Gore in the disputed presidential contest -- the leading gay rights organizations, joined by the ACLU, came out against the lawsuit. They shared Olson and Boies's goal of securing marriage equality, of course, but they feared what the conservative Roberts Court might do. A strong Supreme Court decision against gay marriage would create a precedent that would take decades to undo. With our society moving generally in the direction of more tolerance for gays and lesbians, activists wanted to wait a few more years before bringing a case to the high court.
But gay rights activists may have been too pessimistic about the current Supreme Court. It's true that the Roberts Court is conservative and that several Justices are unlikely to be open-minded about same-sex marriage, including the four most right-leaning Justices: Antonin Scalia, John Roberts, Clarence Thomas, and Samuel Alito. On the other side of the bench, there are four Justices likely to be favorable to Olson and Boies's argument that the denial of marriage rights to same-sex couples violates the Constitution: Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan (assuming she is confirmed).
As usual in the Supreme Court these days, the swing vote belongs to Anthony Kennedy. And there are several reasons to believe that Kennedy, though conservative on many issues, will vote with the liberals on this one. The Supreme Court has issued two major decisions dealing with gay rights over the past 15 years. Both decisions came out strongly in favor of gay rights -- and both were written by Justice Kennedy.
In one of those decisions, Lawrence v. Texas, which held that bans on consensual sexual activity among same-sex partners were unconstitutional, Kennedy wrote that "our laws and tradition afford constitutional protection to personal decisions relating to marriage" and other "family relationships." "These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by" the Constitution. "Persons in a homosexual relationship may seek autonomy for these purposes," Kennedy wrote, "just as heterosexual persons do."
These words suggest Justice Kennedy believes that gays and lesbians should have the same rights and privileges as heterosexuals. Of course, no right that heterosexuals enjoy is denied more often to gays and lesbians than marriage.
Justice Kennedy is also known to be the Supreme Court Justice most likely to vote in favor of expansive interpretations of individual rights. He's a libertarian, which means he almost always sides with the individual against the government. This has led him to vote in ways that liberals love and conservatives hate -- such as his vote to affirm Roe v. Wade -- and vice-versa -- such as his vote against government regulation of corporate speech. But it bodes well for the liberals in the same-sex marriage case.
Of course, no one can really predict what the Supreme Court will do. The same-sex marriage case will take years to reach the high court and, in the meantime, there may be turnover among the Justices. But so long as the question of marriage equality turns on Justice Kennedy's vote, Olson and Boies -- and those in the gay and lesbian community who are depending on them to win this case -- are in good hands.