I’ll leave it to the masters of the jurisprudential universe to handicap how the Supreme Court might deal with the two same-sex marriage cases in legal terms. But since this Court is the most nakedly political since at least the New Deal if not ever, I’ll do a little handicapping on political grounds, since it is largely on political grounds that I think the justices (especially the conservatives) decide things. The question, I think, comes down to two factors: how deeply this heavily Catholic conservative majority feels a collective moral antipathy to same-sex marriage; and the role this majority sees the Court playing in the post-2012-election era—what kind of role the Court should play in this alleged redefining of conservatism that’s going on. My hopes, it may not shock you to hear, are not high on either point, but especially the second one.
Let’s just go over the basics quickly. The Court is hearing two cases today and tomorrow, the Prop 8 case out of California and a challenge to the 1996 Defense of Marriage Act, which defined marriage federally as being between a man and a woman. Because the DOMA case also deals with issues of states’ rights, it seems to most experts I read that the Court will rule against DOMA. Liberal Scotus blogger Scott Lemieux of The American Prospect told me yesterday that he expects to see a 6-3 decision here against DOMA, or maybe even 7-2, leaving only Antonin Scalia and Samuel Alito defending the usual reactionary flank.
The Prop 8 case is more complicated. The legal question here involves whether to uphold a federal court decision from California that Prop 8, which defined marriage as between a man and a woman and passed as a ballot referendum in 2010, is unconstitutional. It can uphold the courts that ruled against Prop 8, in which case same-sex couples can start marrying, perhaps only in California, or perhaps across the nation, depending on how such a decision were to be written. It could strike the California ruling down on narrow grounds in a way that wouldn’t necessarily have much reach beyond California. Or it can say the courts were wrong, the voters were right, Prop 8 stands, and bans on same-sex marriage do not violate the Constitution.
Obviously, a lot is going to hinge on Anthony Kennedy. He has issued several pro-gay rulings. Maybe he’ll be all right. But let’s think now about where we are, and where this court might be, politically.
Think back to last summer, when the court ruled on Obamacare. At that time, the court’s conservatives were taking a lot of (deserved) heat for being the most ideological court in a long, long time. If the court struck down a law (Obamacare) that Congress duly passed, it would be nakedly political, said critics (like me).
John Roberts obviously took some of this criticism to heart. He was willing to make his right-wing pals on the Court angry at him that one time for the sake of tending after his court’s broader reputation. In the political context of the time—a presidential election, a lot of condemnation of the Court and of him personally—he clearly decided that taking a bullet from the right was the politically necessary thing to do.
But what’s the political context now? It’s totally different. When Roberts ruled last year, he might have thought something like: Well, Romney has a decent chance to win, so maybe they can get this mess repealed without my help” (he might also have thought, of course, that upholding the health-care law would energize conservative voters and help the GOP ticket). But now, the GOP is on the ropes. The party loses popularity weekly. The fever shows few signs of abating. All indications point toward several intraparty civil wars—over gay rights, over immigration, over foreign policy—between now and 2016. And they don’t have a candidate who can touch Hillary Clinton, meaning that the party stands a decent chance of being out of power until 2025.
In other words, the political context of today is dramatically different from the political context of last summer. Conservatism is far worse off. This makes me think that the Court is going to do what the majority thinks is best for this weakened conservatism. That might be a narrow decision. A narrow decision would indicate to the same-sex-marriage supporting American majority that conservatives aren’t batshit crazy reactionary bigots, which the justices might decide will be more beneficial to conservatism’s image and standing in the long run.
However, they just might decide that their deflated ideological confreres across America need a bit of bucking up; a good fight, a little dose of vinegar up their nostrils. And they might see themselves, what with people like Senator Portman buckling to the sodomite lobby, as the last line of defense, the last moral men in a crumbling universe.
And it’s at this point that the depth of their moral aversion to same-sexers becomes a factor. True, Kennedy doesn’t seem like he harbors this particular grudge. But he has never decided on this outright question, the constitutionality of banning same-sex marriage, and he certainly hasn’t done it in this political context. Roberts’s surprise on Obamacare notwithstanding, I maintain that history shows that we should expect the worst of these people.
Here’s the bottom line. The country is changing rapidly. Are five crotchety conservative men likely to decide to acquiesce to this change, or fight it? I’d love to be wrong, but I know where I’d place my chip. It’s a transparently political court, in a highly politicized time, on the side that is plainly losing the historical argument. I say, look out.