How Will the Supreme Court Rule on Same-Sex Marriage Cases in 2013?

12/18/2012 12:29 pm ET | Updated Feb 16, 2013
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Answer by Dan Holliday:

Nobody can tell, and this one really is a crap-shoot. This answer is a bit long and, therefore, is written with a mind to:

  • Explain American law and jurisprudence to our non-American friends.
  • Explain some of the finer points to Americans who either haven't cared until now or who generally don't pay much interest to legal politics.
  • The usually interested who might want to see what the sundry issues will be that this court must deal with.

Key Words & Phrases:

  • SCOTUS (Supreme Court of the United States)
  • Bill of Rights (colloquially, the first ten amendments proposed and adopted directly after the ratification of the Constitution in order to more clearly define civil rights within the USA)
  • DOMA (Defense of Marriage Act, passed in 1996, denying gay marriages on a federal level or recognition and permitting the states to decide for themselves and NOT have to recognize those of other states/nations).

What conflicting court issues are being combined into one "hearing" for the Supreme Court:

  • From California: Lawsuits that have worked their way up from the State Court around Proposition 8 in that it is (a) against the US constitution to deny people their rights on the XIV Amendment and (b) it is highly unethical to grant civil rights and take them away.
  • From New York: The federal government is denying benefits to survivors of spouses who earned those benefits. There are a few of these, but the essence is that the Federal Government SHOULD recognize Canadian marriage licenses and the marriage licenses of the states who issue them.

What we have are:

  • Constitutional stricture, ambiguities, and conflicts.
  • Evolving contemporary ideals.
  • US Supreme Court ideologies regarding proper government and human behavior.

Key Justice to watch:

  • Anthony Kennedy (Associate Justice) - The court is pretty fractured. Without a doubt, Kennedy is the most important human being when it comes to gay rights LIKELY IN THE HISTORY OF THE USA (exponentially so if he comes down in favor of gay marriage).
  • John Roberts (Chief Justice) - I will repeat this several times, he may want a longer legacy, and it appears he's willing to see this from the long view.
A vote in favor from EITHER Kennedy or Roberts makes this an absolute win for gays and gay marriage proponents.

-- Constitutional Stricture, Ambiguities, and Conflicts --

  • The Full Faith & Credit Clause - ("FF&C") demands that states respect the laws and institutions of other states; it does NOT permit the federal government to limit this clause or define it. It says what it means. Full Faith and Credit Clause
  • IX Amendment - which states that people have more rights than those simply spelled out in the Constitution. There are others that have not been defined or imagined. It doesn't say who's to extend or define them, so it's left to the individual states, Congress, and the SCOTUS to define who those people are, what those rights are, and how they are applied within their jurisdiction. Ninth Amendment to the United States Constitution
  • XIV Amendment - demands that all citizens be treated as equals before the law and not be denied the rights and immunities enjoyed by the citizens of the United States. Fourteenth Amendment to the United States Constitution
  • The Necessary & Proper Clause - ("N&P") which grants the US Congress the power to enact laws that are "prudent and necessary" to exercising the powers defined in the Constitution and those that the SCOTUS interprets are within its prevue based on the ambiguities of the Constitution. Necessary and Proper Clause
There's an issue with the fact that the Supreme Court has granted ever more leeway to the Congress of the USA in exercising powers that it never had before, while also understanding that the States were required to respect each other's acts while at the same time respecting the IV Amendment of the Constitution.

  • Does the Congress have the right under the Necessary & Proper Clause to limit the scope of the Full Faith & Credit Clause?
  • Do gays apply under the XIV Amendment's wording, despite the fact that this is CLEARLY not what the framers of that Amendment wanted?
  • SHOULD gays be treated as a suspect class?
  • SHOULD the Supreme Court get ahead of this issue and on the "right" side of history before history outruns the Court?
  • Do we need to concern ourselves with original intent, since clearly, we have evolved ethically beyond what they wanted in the first place?
  • Is this right for the country?
  • Will a Constructionist vote in favor of Full Faith & Credit and strike down DOMA or see this as a larger "interstate" issue and uphold Congressional powers?

Possible Outcomes:

  • OUTCOME ONE: Side with the Congress, hold that gays have no specific human rights pertaining to their sexuality, uphold DOMA (under the N&P Clause), restrict FF&C Clause, and leave current law in place. States WILL still keep their gay rights laws, but the Federal Government and the other states will not have to recognize. This will be the law of the land, then, until Congress "evolves" and passes a gay civil rights act AND/OR the states individually pass these acts AND/OR the SCOTUS is altered by retirements (and likely will be the time Obama leaves in 2016). Not as much of a disaster as some gays make it out to be: this is merely a continuation of the status quo and the tide is turning no matter what the Court decides. My best "Nate Silver" odds: 4.5/10

  • OUTCOME TWO: Call DOMA a congressional over reach beyond the N&P Clause, enforce the FF&C clause nationally, and expand the IV Amendment of the Constitution to include gays and lesbians (and likely transgender) thus being the largest civil rights expansion in US history since the 1960s. States and the federal government will ALL be required to issue and recognize gay marriage (likely within a reasonable time-frame to work out the logistics). My best "Nate Silver" odds: 5.5/10.

  • OUTCOME THREE: Call DOMA a congressional over reach beyond the N&P Clause in relevance to the states and enforce the FF&C act nationally BUT permit DOMA in the federal sphere because the federal government DOES have the right to govern its own actions. Highly unlikely. Courts don't like creating a gelatinous legal mess. My best "Nate Silver" odds: 1/10.
  • OUTCOME FOUR: Individual decisions based on the lower courts rulings (i.e. "California's Prop 8 is thrown out, but the lower court's ruling in NY stands."), also unlikely. My best "Nate Silver" odds: 1/10.
  • -- Evolving contemporary ideals --

    The people who sit on the bench aren't dumb. I respect ALL of them (well, except maybe for one). They are all profound thinkers, fair minded, and very intelligent. Each of them comes to his or her ideologies through very sound and rational means.

    That said, ALL of them are completely aware that the tide has turned on this issue and only a moron would predict that twenty years from now, the USA won't have gay marriage -- barring an invasion from Mars, the sudden appearance of Christ descending from the clouds (above the USA, of course, we're Jesusland), or a violent revolution destroying the nation -- we all see this coming.

    Many justices are concerned with evolving ideals concerning gays; some are staunch supporters of traditional ethics; others may believe that gays deserve to marry but cannot bring themselves to "reinterpret" the Constitution to make that happen.

    But there is the fact, that the court will want to be on the right side of history and this will be a heated debate in their chambers. Nobody wants to be the "justice" who wrote another Dred Scott decision and ridiculed for eternity.

    -- US Supreme Court ideologies regarding proper government and human behavior --

    The court has to balance

    • One justice will be strict interpretationists and not judge the morality of the behavior. (Scalia).
    • Two are more or less guaranteed to see this through the lens of their social and religious values and judge it not worthy of protection. (Thomas & Alito).
    • The Chief Justice will judge this through his views of the "nature" of the Constitution and may want HIS tenure as Chief Justice to be marked by being on the "right" side of history when he knows full well that times are changing (to avoid being a "Dred Scott" chief justice ... but may otherwise be hard-pressed to justify it by wording or his personal beliefs. (Roberts)
    • One is very much in the middle and may side with the "left" because he -- like Roberts -- won't want to be on the wrong side of history. (Kennedy)

    • Four others are staunch liberals and will want -- both based on their Constitutional interpretation and personal ideologies -- to extend rights to gays. (Ginsberg, Breyer, Sotomayor & Kagan)

    My Prediction:


    • Antonin Scalia - I actually respect this man. He makes decisions based on a fundamental ideology that basically runs on strict interpretation ("constructionism"). I don't like his philosophies, but I respect the man behind the ideology.

      LIKELY: On its own without the Congressional act, he'd strike down the state's refusing to recognize gay marriage licenses out of state -- he's that much a Constructionist, but he's also likely to see this as a N&P power and uphold DOMA under Congressional purview. No grounds for IX or XIV Amendment extension.

    • Clearance Thomas - Again, very conservative constructionist. Not a fan of this guy, but that's all I'll say. He will not vote in favor of extending the XIV Amendment to gays.

    LIKELY: Uphold N&P on its own, but likely to do so because of a distaste for the moral implications of gay marriage. No grounds for IX or XIV Amendment extension.

  • Samuel Alito - Not a chance. Bush picked him for good reason: he's the most aggressively Conservative of the bunch. Where Scalia & Thomas are conservatives but will base their interpretations on fundamental Constructionism, Alito will allow his conservative stripes to influence him on what he sees as "moral" grounds.

  • LIKELY: Uphold N&P on its own and won't budge on the moral grounds and opposition to gay marriage. No grounds for IX or XIV Amendment extension.


    • Ruth Bader Ginsberg - I could say basically the same thing about all three liberal justices: that is, they are ideological liberals in Constitutional interpretation and in social values. She wants this as the jewel in her crown before retiring. She wants to make history on this one and sees herself on the right side of history. PREDICTION: She'll retire after this decision.

      LIKELY: Absolutely strike down DOMA as a Congressional over-reach; impose FF&C and extend the IX or XIV Amendment to gays.

    • Stephen Breyer - Very progressive. He believes the job of the SCOTUS is to make the laws better for humans. He's willing to "reinterpret" to make a better nation.