RISKY BUSINESS

Could The Supreme Court Decide That We Don’t Have A Constitutional Right To Marriage?

Supreme_Court_US_2010The Supreme Court has finally run out of road to kick the marriage equality can down. Tacitly acknowledging that the issue can no longer be ignored, the justices have agreed to decide once and for all whether there is a constitutional right to marry. 

Specifically, the Court will be answering the questions that it left unanswered with the Windsor ruling two years ago: do states have the right to ban same-sex marriages and can states refuse to recognize marriages from other states? At the time of the Windsor ruling, the justices insisted that they weren’t being asked to address that question, suggesting that it’s each state has the right to make its own choice.

So much has happened in the intervening year and a half that the Windsor ruling seems from a previous decade. We’ve gone from 9 states with marriage equality to 36. Public support for marriage equality keeps growing.

But every case has its risks. As inevitable as the final outcome looks, there’s always a chance that a majority of justices decide that its still too soon to declare marriage equality a federal right, as opposed to one that states can confer.

The case at issue this time around is a ruling from the Sixth Circuit Court of Appeals, which covers Kentucky, Michigan, Ohio and Tennessee. In a 2-1 ruling last November, the Court reinstated marriage bans in those four states. The two majority judges, both appointed by George W. Bush, relied upon a one-sentence ruling from a 1972 Supreme Court ruling  involving two Minnesota men who sought to marry. The judges didn’t even bother to refer to the Windsor arguments, which was a remarkable feat of judicial acrobatics.

Could the justices decide that the time isn’t right? After the Windsor ruling, Ruth Bader Ginsburg said that the Court acted “just the way they should have” by not getting ahead of public opinion. That will probably be the question hanging in the air when the Court takes up oral arguments. This is not a famously activist group of judges (at least not on cultural issues) and basically telling the residents of Tuscaloosa that gay couples have the same right to marry as they do to bear arms may be a bit too far even for those sympathetic to the issue.

Still, in the end it only takes five justices to make a majority. Would any of the five who struck down the Defense of Marriage Act get cold feet now? Even Ginsburg isn’t that cautious; she was the first justice to perform a same-sex marriage ceremony. 

Moreover, on this single issue, Justice Anthony Kennedy has shown a willingness to be bold. He wrote the majority opinions in the decisions striking down sodomy laws and “special rights” ballot measures. Why he would change his mind now would be hard to imagine.

Still, that doesn’t mean it can’t happen. We’ll have a better sense of what the justices are thinking when they hear oral arguments in the case, like in April. The final decision will likely come down to the wire again at the end of the Court’s term in June. In other words, just in time for the second anniversary of the Windsor ruling.