THE BLOG
01/13/2016 06:48 pm ET Updated Jan 13, 2017

The Potential Murky Future of Same-Sex Marriage: An Aging Supreme Court

ASSOCIATED PRESS

Recently, there have been many warning signs that the strides made in the same-sex marriage arena might be less than final.

Most commentators believed that the end of an era of discrimination from the institution of marriage based on sexual orientation took place last year. In June, the seminal same-sex marriage case, Obergefell v. Hodges, was decided by the United States Supreme Court. It seemed so clear a victory that in July the organization, Freedom to Marry (an advocate for the right to marry for same-sex couples), decided to go out of business.

And why not? With Justice Kennedy's sweeping opinion in Obergefell, it seemed to end any contention over the fundamental right of same-sex marriage. Not only would Justice Kennedy's opinion give the right to marry to same-sex couples, but, many thought, "Justice Kennedy has thereby fashioned a major shift in constitutional doctrine, one that will have ramifications in many cases to come."

Not only did "love win," but, potentially, fundamental human rights would now take on new meaning. There is a growing view that after the Obergefell decision we were dawning on a new era of constitutional doctrine. This view has been adopted and espoused by such eminent constitutional law scholars as Kenji Yoshino of NYU and Lawrence Tribe of Harvard. Most recently, Tribe penned a Harvard Law Review article opining that we are now entering a new era of protections for previously marginalized groups. He has coined a term for the new era of constitutional protections, "equal dignity." Justice Kennedy, according to Tribe, "tightly wound the double helix of Due Process and Equal Protection into a doctrine of equal dignity. . .."

Under Professor Tribe's new Fourteenth Amendment rule of equal dignity, issues like Kentucky Clerk Kim Davis refusal to issue marriage licenses would be easy. She would be able to voice her personal objections; the First Amendment protects that speech. But under Professor Tribe's interpretation of Obergefell, "... the doctrine of equal dignity prohibits them from acting on those objections, particularly in their official capacities, in a way that demeans or subordinates LGBT individuals and their families by preventing them from giving legal force to their marriage vows." So, if we believe Tribe and Yoshino, it would appear that we are embarking on a new era of protections.

But can we be sure that those protections afforded in Obergefell are not only expanding but universal? I for one was taken aback when Marco Rubio said on Meet the Press, that the issue of same-sex marriage was still not settled law. How could a decision that was just announced in June, not be settled law?

Was he referring to the second order problems still working their way through the courts? For example, Alabama still wants to block same-sex adoption. The Supreme Court just stayed the Alabama Supreme Court decision while it decided whether to hear the case. This must be what Senator Rubio is referring to, right?

Well, actually, no. He was referring to the fact that the right of same-sex marriage is only settled as long as the Supreme Court thinks it is settled. And if he were elected president, he would appoint Supreme Court justices that espoused his point of view on same-sex marriage stating, "[a]nd ultimately, I will appoint Supreme Court justices that will interpret the Constitution as originally constructed." There are a litany of problems with Rubio's view.

Whether Marco Rubio becomes president or not, it leads us to an interesting question. Could a Republican president appoint Supreme Court justices that think same-sex marriage is not a fundamental right? After all, it was a 5-4 decision. Could one of the five retire and a President Rubio appoint a like-minded individual to the Court? Would not then the issue potentially become unsettled?

The important question to then ask is how often do Supreme Court justices follow the politics of the President that appoints them? Since Justice Kennedy was an appointment by Ronald Reagan, and he was the swing vote and the author of the Obergefell opinion, anecdotally I would have thought the answer was very little.

How wrong I was. Recently, Eric Posner, a law professor at University of Chicago, put up a study he conducted based on an upcoming paper, in which he states, "[a] justice is more likely to vote for the government when the president who appointed him is in office." Posner and Lee Epstein in their paper call this the "loyalty effect." Interestingly, Justice Kennedy falls within an anticipated outcome of their paper. Republican appointees have less of a loyalty effect than Democratic appointees.

Maybe we should be worried that the great strides in the marriage equality movement are not as entrenched as either Tribe or the Freedom to Marry movement believes.

Currently, four of the nine justices are over age of 70: Justice Ginsberg is 82 years old, Justices Scalia and Kennedy are 79, and Justice Breyer is 77. There is a good chance that at least one of those justices will need to be replaced, especially considering Justice Ginsberg's health problems recently. Even former President Bill Clinton's first solo appearance on the campaign trail for Hillary, picked up on this trend. He said the next president could nominate up to three new Supreme Court justices. This would represent one-third (3 out of 9) of the justices of the Court.

If there is a President Rubio or Cruz, then the right of same-sex couples to marry and the new right of equal dignity might not survive. If Posner is right, then comments by presidential candidates about issues like same-sex marriage should be taken very seriously and not summarily dismissed. The right to same-sex marriage might not be as firmly entrenched as first thought earlier this year.