Gay Marriage Could Lose Tomorrow

This week’s oral arguments at the Supreme Court have generated more heat than light. So is gay marriage in every state what’s next? Here’s an explainer.

Oral arguments in the Supreme Court’s same-sex marriage case will take place on Tuesday, together with plenty of media hype, vocal protests on both sides–and, most likely, a fair amount of confusion regarding what’s actually at stake. Here’s what you need to know.

Same-sex marriage is now legal in 36 states, mostly because of court decisions in the wake of the 2013 case of Windsor v. United States, in which the Supreme Court invalidated the federal Defense of Marriage Act. Although Windsor did not address state marriage bans, it framed the question in such a way as to make the subsequent decisions almost inevitable. Two years and many court cases later, the issue is back at the Supreme Court.

This year’s case, titled Obergefell v. Hodges, is certain to be historic, whichever way it is decided. It is actually the consolidation of four cases, from Ohio, Tennessee, Kentucky, and Michigan, and deals with two related questions: whether all states must issue marriage licenses to same-sex couples, and if they don’t, whether they must recognize those issued by other states. Most attention has focused on the first question, since it would render the second one irrelevant.

Incidentally, the named plaintiff, Jim Obergefell, is—like Edie Windsor before him—the perfect face of the movement. He and his partner of 20 years, John Arthur, were married after Arthur was diagnosed with ALS, flying via medical transport plane from Ohio to Maryland to do so, as part of a “Make a Wish”-style program for the terminally ill. Arthur died not long after.

So, is there a federal right to same-sex marriage?

No. And no one is arguing that there should be. What the petitioners in the case are arguing, rather, is whether there is a federal right to marriage–and whether that right applies to gay as well as straight couples.

The difference is a crucial one, and is at the root of why so many state and federal courts have ruled in favor of same-sex marriage. To conservatives, marriage means heterosexual marriage, and gay marriage is something else. To liberals, marriage means a legal union of two people, whether of the same or opposite sex. See the difference?

That’s why conservatives scoff about what Abraham Lincoln, who signed the 14th amendment’s guarantees of due process and equal protection under the laws, would’ve thought of gay marriage. (Actually, given Lincoln’s long-term and intensely amorous relationship with Joshua Speed, maybe we shouldn’t presume.) In their framing of the issue, “gay marriage” would be a whole new right, invented by the Court and read into the Constitution.

The difference in framing is why some liberals can’t understand why marriage opponents are so “bigoted” or “discriminatory.” Love is love, liberals say, and to deny marriage to some couples because they happen to be gay is discrimination.

Who’s right? It really is a matter of interpretation–but on this question, Justice Kennedy, the swing vote in the current court, has already sided with the liberals. Since 1996, he has held, in three crucial gay-rights cases, that sexuality is a matter of identity, not conduct. In Romer v. Evans, he wrote the opinion striking down an anti-gay provision, saying it singled out a class of people for disadvantage. In Lawrence v. Texas, he said that no defensible reason could be provided for anti-sodomy laws, which again targeted a specific group. And in Windsor, he wrote that Congress set out to discriminate against gays when it passed DOMA.

Justice Scalia dissented in all these cases, cutting right to the core of each. In Lawrence, for example, he denied that there was any right to “homosexual sodomy.” Note the phrasing. It’s not “private sexual behavior” in which a certain class of people engage. It’s a specific kind of conduct. Act, not identity.

Now watch what happens when you follow each line of reasoning through to the current case.

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If Obergefell and Arthur were trying to get “married,” then forbidding them from doing so is a double violation of the Fourteenth Amendment. It denies them access to the “fundamental right” of marriage, included in the due process clause. And it discriminates against them, violating the equal protection clause. (There are important legal differences in how each clause is adjudicated, but we’ll leave those aside for now.)

If, on the other hand, Obergefell and Arthur were trying to get “gay married,” then it might be constitutional to stop them. “Gay marriage” is not a fundamental right, and it’s their conduct, rather than their identity, that is being restricted.

After three landmark cases in which Justice Kennedy has agreed that gay people are a certain kind of people—not just people who engage in a certain act—it would be highly unlikely for him to reverse course now. Moreover, the LGBT side has briefed the case in exactly the way Justice Kennedy has framed earlier ones. They have avoided the question of whether some kind of heightened scrutiny is required, and said that marriage bans have no permissible rational basis. They have focused on how marriage bans create a “second class” set of citizens.

Is there any hope, then, for the “traditional marriage” side?

Absolutely, and the many pundits who have regarded this case as inevitable are, in my view, mistaken. It is the case that public opinion has come around, with between 55-60% of Americans now accepting of civil same-sex marriage. But public opinion is not the same as judicial reasoning, and Obergefell is no slam dunk.

The main reason is federalism. As Windsor itself relied upon, marriage has always been the states’ business, not that of the federal government. In a way, Obergefell would be the anti-Windsor, holding that a federal marriage right trumps the will of the states to define marriage as they see fit.

There is precedent for this, of course. Loving v. Virginia, the 1967 case that invalidated miscegenation laws (laws banning mixed-race marriage) found exactly that: a federal marriage right trumped the will of the states to define marriage as they saw fit. But that was about race, and a half-century of Supreme Court jurisprudence has shown that when it comes to constitutional law, race is different.

The states defending their marriage bans also pitch specific arguments to Justice Kennedy. They point out that a robust debate is taking place on this issue across America, and that a Supreme Court ruling would shut it down. They say that this really is a matter of state sovereignty. These are values Justice Kennedy has espoused in other contexts.

Notably, the states’ briefs—unlike the 66 amicus briefs filed by opponents of same-sex marriage—don’t spend a lot of time on the pseudo-scientific evidence about same-sex families. Justice Kennedy has never bought into it, both because the science is junk, and because it is transparently not the real rationale for these laws. Rather, the states emphasize that this is a matter of reasonable civic debate, and the Court should let the democratic process unfold.

The smart money is still on the pro-LGBT side. Although the anti-gay side says that a Supreme Court ruling would shut off debate, it would more likely be seen as the next logical step in that debate. The Court would be swimming with the tide of history, not against it.

Moreover, conservatives have a Wingnut Problem. Every time a lawyer gets up to make a principled argument for traditional marriage, some bigot refuses to bake pizzas for gay people. For 20 years, Justice Kennedy has opposed that kind of anti-gay animus, and it’s increasingly hard for conservatives to pretend it doesn’t exist, or that it isn’t the real reason for anti-gay laws. Especially when a “March for Marriage” led by just those wingnuts is happening right on the Supreme Court steps.

Inside the building, though, a different story is being told, and its ending is far from certain.