It’s come to this: Even those who most strongly oppose gay marriage think the Supreme Court is likely to support a constitutional right to same-sex unions — and are looking beyond Tuesday’s legal arguments to demand that Congress intervene.
Wielding placards supporting “traditional marriage” and reciting prayers for divine intervention, pastors and other social conservatives who gathered on the court’s steps Monday sounded resigned to a ruling they believe would be deeply damaging to the nation.
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“We recognize that we are at a crossroads like never before in this nation’s history,” the American Decency Association’s Bill Johnson said, urging gay-marriage opponents to hope for the best but brace for the worst. “I would just say to each one of us that there is still that possibility that, despite the darkness of the day, that God answers prayers.”
“We now perhaps are days away from this very court telling us that holy matrimony between one man and one woman, ordained by God in the Garden of Eden … is merely a relic of a bygone era,” added Kay Daly of the Coalition for a Fair Judiciary. “I’m hopeful but, at the same time, I have a great deal of trepidation.”
On Tuesday, the court will hear arguments on same-sex marriage cases that could lead to a ruling forcing every state to certify gay unions. The justices’ endorsement of such a sweeping constitutional right was almost unthinkable even a decade ago, but jurisprudence has changed so quickly — alongside public opinion — that even two of the court’s most die-hard conservatives, Antonin Scalia and Clarence Thomas, seemed to concede earlier this year that the court was moving toward granting a right to marry.
Thus, those who inveighed against the evils of same-sex marriage outside the court building on Monday were already looking past the justices to Congress, urging lawmakers to support legislation that would strip federal courts of jurisdiction over marriage-related litigation and forbid officials from spending federal funds to enforce whatever the Supreme Court holds in a ruling expected by late June.
Rep. Steve King (R-Iowa) introduced a bill last week that would make both such moves. Sen. Ted Cruz (R-Texas) has proposed a similar measure, along with a constitutional amendment that would prohibit the federal government from interfering with state gay-marriage bans.
The anti-gay-rights activists’ concern that they may need such measures is not without foundation. While the comments of legal pundits are easy to dismiss as mere speculation, the court’s most conservative justices also seem to be among those who see the writing on the wall.
In February, when the Supreme Court refused to block an appeals court ruling requiring Alabama to recognize same-sex marriage, Thomas and Scalia joined to warn that the justices’ refusal to step in “may well be seen as a signal of the Court’s intended resolution” of the marriage cases it will hear Tuesday.
The pair of conservative justices never made exactly clear if they agreed or disagreed with the likely public assessment of where the court would come out, but their overall tone suggested that a ruling in favor of same-sex marriage might be inevitable.
Many legal observers predicted it would be at least several years before the issue of same-sex marriage returned to the high court after a pair of decisions the justices issued in 2013. One landmark, 5-4 ruling in the case of Windsor v. U.S. struck down the federal Defense of Marriage Act. But the justices passed up on technical grounds a case out of California where they could have resolved the issue definitively.
The move punted the issue back to the lower federal courts, which acted with surprising speed and near-unanimity to strike down gay-marriage bans across the country.
“I don’t know if it’s a rocket docket,” said Daly. “This is dangerous in a lot of ways … It’s gratifying in one sense. It’s terrifying in another.”
However, some conservatives believe the court actually acted too slowly, particularly when it decided last October not to take up appeals from five states that asked the justices to confront the issue head-on. That gave other courts more time to issue more rulings in favor of same-sex marriage, eventually spreading the practice to 37 states. The flurry of rulings, and the justices’ refusal to stay them, created a kind of on-the-ground momentum that could be hard for the justices to reverse.
“The combination of this broadly worded but deeply confusing opinion in Windsor, coupled with their refusal to take responsibility for what lower courts have done with it, is significant,” said University of Richmond Law professor Kevin Walsh. “Once it became clear what lower courts were doing with the decision in Windsor, [the justices] should have addressed whether the Constitution requires recognizing same-sex marriage.”
A crowd gathering in advance of Tuesday's Supreme Court hearing on gay marriage. | M. Scott Mahaskey/POLITICO
In January, the high court finally agreed to wade into the issue again, granting review to cases from Kentucky, Michigan, Ohio and Tennessee after the federal appeals court with jurisdiction over those states — the Sixth Circuit — bucked the trend and ruled against same-sex marriage rights.
There’s a broad expectation that the Supreme Court is likely to rule at least 5-4 in favor of a federal constitutional right to same-sex marriage, with Republican-appointed Justice Anthony Kennedy joining the court’s Democratic appointees expected to back such a right.
A total of five lawyers are expected to square off during the scheduled 2½ hours of argument Tuesday.
Two private attorneys — Mary Bonauto of Gay and Lesbian Advocates & Defenders and Douglas Hallward-Driemeier, a former lawyer in the Justice Department’s Office of Solicitor General — will argue in favor of same-sex marriage rights, as will Solicitor General Donald Verrilli.
Arguing for the four state bans on gay marriage will be former Michigan Solicitor General John Bursch and Joseph Whalen, who works in the office of Tennessee’s solicitor general.
Advocates for same-sex marriage rights are expected to argue that there’s no rational basis for prohibiting same-sex couples from marrying and that, even if there were, measures that discriminate against gays and lesbians should be subjected to heightened scrutiny that such bans can’t possibly meet.
The lawyers for the states counter that there are a variety of reasons to allow states to enforce such bans, including a respect for voters who put the measures in place. Other reasons revolve around a kind of autonomy for states, as well as longtime justifications for same-sex marriage bans, including promoting male-female marriages, and encouraging procreation and child rearing.
While it hasn’t received much discussion, there is a potential twist in how the court could rule on same-sex marriage.
When the justices agreed to hear the four cases in January, the court not only asked lawyers to address the issue of whether the Constitution requires states to allow gay couples to marry but also added a question about whether states should be required to recognize marriages approved in other states.
That raises the possibility that a majority of judges could stop short of requiring states to allow same-sex couples to marry, but insist that states accept as married any couple legally married in another state. That would allow states to maintain their same-sex marriage bans, but cure some of the problems gay and lesbian married couples face relating to hospital visitation, inheritance, divorce and child-raising.
Gay rights advocates sounded confident Tuesday that the massive shift in public opinion in favor of same-sex marriage would propel the justices toward the more sweeping ruling.
“Simply put, this isn’t a question any longer of a country evolving. This country has evolved,” Human Rights Campaign President Chad Griffin said, echoing President Barack Obama’s language as his position on the issue morphed from opposing gay marriage to embracing it.
“Now, it’s just a question of when our laws will finally catch up,” Griffin added.
The plaintiff whose name leads off the cases the Supreme Court will hear Tuesday, Jim Obergefell of Ohio, said he’s surprised at how quickly the country has come to accept same-sex marriage in the wake of the last pair of rulings from the justices in 2013.
“The last two years it’s been amazing how much has changed and how quickly it’s changed,” said Obergefell, who married his terminally ill, long-term partner John Arthur in an unusual ceremony aboard a medical aircraft at the Baltimore airport in 2013. Arthur died a few months later. Obergefell is fighting for the right to be listed as Arthur’s husband on his death certificate.
“What I hope will happen in June is long overdue, but I have to be happy that it is on the verge of happening,” Obergefell said.
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