02.09.12

How the 2012 Election Will Determine the Future of Gay Marriage

The Supreme Court is almost certain to take up California’s Proposition 8 on gay marriage, and it’s Justice Ginsburg, not Kennedy, who may determine what happens, writes Adam Winkler.

In the wake of Tuesday’s landmark decision striking down California’s Proposition 8, which banned same-sex marriage, many commentators have asked what impact the court’s decision will have on the 2012 presidential election. Does it put pressure on President Obama to finally come out strongly in favor of marriage equality? Will it spur turnout in favor of the Republican candidate? Or will it be a political disaster for the Republican nominee trying to appeal to the center in the general election?

One question that hasn’t been asked, however, is what impact the 2012 election will have on the court’s decision—and, by extension, on the future of same-sex marriage. It’s quite possible that this year’s presidential contest will fundamentally shape the prospects of marriage equality for at least a generation, perhaps more.

Legal analysts, including myself, have pointed out that if the Proposition 8 case is taken up by the Supreme Court, the outcome is likely to be determined by a close 5-4 vote. With four members of the court almost certain to vote to uphold bans on same-sex marriage (Roberts, Alito, Scalia, and Thomas) and four members just as likely to rule the other way (Ginsburg, Breyer, Sotomayor, and Kagan), the swing vote would be, as is so often the case, Justice Anthony Kennedy. Because Kennedy has written previous opinions strongly endorsing equal rights for gay people, many in the gay-rights community are hopeful that Kennedy will swing their way. But there’s certainly no guarantee, and others worry that Kennedy, a Catholic, will not want to upset the laws in place in 44 states that ban gay marriage.

Perhaps, however, we’ve been focusing on the wrong justice. What if Justice Ginsburg is the one we should be talking about?

There’s little doubt that Ruth Bader Ginsburg, a Clinton appointee who was a pioneer in the women’s-rights movement and a steady vote in support of gay rights as a justice, would cast her vote in favor of marriage equality. What we might well doubt, however, is whether she will be on the court when the time comes for the justices to render a decision on this issue. And that’s why this presidential election is so important for same-sex marriage.

There’s no set timetable for when the Supreme Court will hear an appeal in the Proposition 8 case. The parties in the case are expected to first ask the federal court that decided the case Tuesday to reconsider its ruling. They are legally entitled to request what is known as “en banc” review of the decision. In an en banc review, a large panel of 11 federal judges would consider whether the decision reached Tuesday by a smaller panel of three judges was correct in holding Proposition 8 to be a violation of the Constitution’s guarantee of “equal protection of the laws.” Even if the parties do not request it, the judges on the federal court of appeals can choose on their own to review the decision.

The en banc review process usually takes about a year to complete, sometimes longer. The parties will be requested to file new briefs. Then the court will hold an additional round of oral argument. The judges have to draft and circulate opinions to one another and then redraft them to address points made by the others. Depending on how contentious the issue is among the judges, we may be well into 2013 before they issue a final decision that can be appealed to the Supreme Court. It’s possible, therefore, that the justices won’t have the opportunity to consider the Proposition 8 case until 2014.

By then, Justice Ginsburg might not be on the court. Although she’s affirmatively disclaimed any intention to retire in the near future, Ginsburg, the eldest member of the court, is 78. At that age, fate has a way of disrupting even our most determined plans. Ginsburg has also battled cancer—twice. In 1999 she was diagnosed with colon cancer, which she survived, only to discover three years ago that she had pancreatic cancer, one of the deadliest forms.

According to the National Center for Biotechnology Information, “ninety-five percent of the people diagnosed with this cancer will not be alive 5 years later.” Fortunately, Ginsburg’s pancreatic cancer was caught very early and completely removed. Reports suggest the cancer did not spread to other parts of her body, and all of us, whether we agree with Ginsburg’s jurisprudence or not, should pray that she’ll be one of the lucky ones who survive more than five years—that is to say, past 2014.

Justice Ginsburg has in her hands the ability to avoid this whole situation. She could announce her intention to retire this summer, after the end of this year’s term.

But what if our prayers aren’t answered? Then the winner of the 2012 presidential election will select her successor. If that’s Barack Obama, then we can expect he’ll choose someone with a similar jurisprudential philosophy to Ginsburg's, and the prospects for equal marriage rights for all won’t change. If Republicans win the White House, however, the prospects change dramatically. Any Supreme Court Justice nominated by Mitt Romney or a (gasp!) Rick Santorum will almost certainly vote against same-sex marriage and uphold Proposition 8. Then Justice Kennedy’s vote will be irrelevant. There will still be a solid bloc of five justices against gay marriage regardless of what Kennedy does.

A Supreme Court ruling against same-sex marriage would set back the cause for years to come. While several states, perhaps even a majority, will eventually extend the right to marry through the ordinary political process, numerous states, such as those in the South, will retain their marriage-discrimination laws for at least another generation or more. And the Supreme Court would be unlikely to reverse course for the foreseeable future, particularly if there’s a new, more conservative majority of justices courtesy of a Republican victory in the 2012 election.

Justice Ginsburg has in her hands the ability to avoid this whole situation. She could announce her intention to retire this summer, after the end of this year’s term, and give Obama the chance to name her replacement before the November election.

For supporters of same-sex marriage, perhaps the only question they should be asking is how they can persuade the legendary justice to do just that.