Supreme Odds: How Will Justice Sonia Sotomayor Vote on Marriage Equality?

Justice Sonia SotomayorAs a nominee to the U.S. Supreme Court in 2009, Sonia Sotomayor was grilled about her opinions on marriage for same-sex couples. Republicans on the Senate Judiciary Committee wanted to know how she might rule when–as everyone expected—cases challenging Proposition 8 and the Defense of Marriage Act (DOMA) reached the high court.

“Do you agree that marriage is a question reserved for the states to decide on Baker v. Nelson?” asked Senator Charles Grassley (R-Iowa).

Baker is a 1972 case in which the Supreme Court “dismissed for want of a substantial federal question.”

The case got its start when a gay couple sought a marriage license in Minnesota. Once denied, the couple sued in state court, where the couple also lost. Opponents of same-sex marriage argue that Baker is precedent on the issue.

Sotomayor, noting that the cases could come before her as a justice, declined for disclose her view, but Grassley persisted.

“Are you saying to me that Baker v. Nelson is not a precedent?” asked Grassley.

“If it is the court’s precedent,” she said, “…I will apply that precedent to the facts of any new situation that implicates it.”

In oral arguments on both cases in March, the issue came up only once (in the Prop 8 case) and Justice Ruth Bader Ginsburg shot it down, noting, among other things, that “same-sex intimate conduct was considered criminal in many states in 1971, so I don’t think we can extract much in Baker v. Nelson.”

During her four years now on the court, Sotomayor has proven to be a close ally to Ginsburg. Out of 64 decisions, they’ve disagreed three times.

And during oral arguments on the DOMA and Prop 8 cases, she delivered frequent and tough scrutiny to the arguments of attorneys defending the laws that so disadvantage gay couples.

Here’s what we think the odds look like, statistically speaking, for Sotomayor, as well as some other factors to weigh in when considering her vote:

Percent voted pro-gay (three cases): 67

Percent voted with liberal wing this session: 93

Odds she’ll vote for two pro-gay decisions: 4 to 1

Appointed by: President Barack Obama

Age: 59 on June 25

Religion: Catholic

Most notable cases: In a 2010 case (Doe v. Reed), she concurred with the majority that Washington State had the right to require public disclosure of signatures on petition for an anti-gay ballot measure. Sotomayor wrote a separate concurring opinion to say that courts “should be deeply skeptical of any assertion that the Constitution, which embraces political transparency, compels States to conceal the identity of persons who seek to participate in lawmaking through a state-created referendum process.”

Interesting factoid: As a senior at Princeton in 1976, Sotomayor was one of only 39 people to sign onto a letter to the student newspaper condemning an attack on the residents of two openly gay members of the campus gay organization.

Notable remark during Prop 8 argument: In a question to Yes on 8 attorney Charles Cooper, she got him to concede that he could not think of “any other rational basis reason for a state using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them….”

Notable remark during DOMA argument: When BLAG attorney Paul Clement argued the federal government needs a uniform definition of marriage in regard to federal benefits, Sotomayor fired back: “So they can create a class they don’t like — here, homosexuals … and decide benefits on that basis when they themselves have no interest in the actual institution of marriage as marriage–the states control that.”

Lisa Keen, co-author of Strangers to the Law: Gay People on Trial, will be posting nearly daily on legal matters leading up to and beyond the Supreme Court decision. Her coverage on this and other issues is also available at

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  • rcs831

    Maybe they should just make a ruling already. Jeesh!

  • Gus

    It shouldn’t be difficult to give a yes to these cases because we are talking on equality, I hope they do it soon and it will be a positive answer.

  • Elloreigh

    @Gus: If only it really were as simple as “equality”. The law is rarely so simple though, especially when there are multiple competing interests.

    In Prop 8, those interests/questions include the power of voters to amend their state Constitution, a question as to the legal standing of that amendment’s proponents to appeal a lower court ruling, a question of whether voters can use the amendment process to take away rights that their state supreme court had found to exist, the question of whether the right to form a social & economic union called marriage carries with it a right to legal recognition of the marriage, and the question of whether the amendment creates a classification in the law (that of persons who marry persons of the same sex) for a suspect purpose (that of expressing animus toward gay people – the group of individuals most likely to marry a same-sex partner, though not the only group). Hand in hand with that are questions of what level of scrutiny the court should apply in order to evaluate the claim that Prop 8 violates the 14th amendment’s equal protection clause. None of these are simple legal questions, regardless of how it may appear on the surface.

    The 14th’s promise of equal protection of the laws is not a requirement that the law make everyone equal; rather, it is hard line in the sand against state governments discriminating between groups of individuals similarly situated to each other in their qualification for the ‘protection’ of the law in question.

    In the DOMA case, the competing interests & questions include state powers to regulate marriage versus interests in uniform application of federal law, once again the question of whether the law creates a suspect classification, a question about the standing of those seeking to appeal a lower court’s ruling, and a question of whether New York’s recognition of a marriage of foreign origin creates any burden on the federal government to extend its recognition. The 14th’s equal protection clause was originally a limit on state powers, not federal powers – and DOMA is a federal law. This casts some doubt on the Court being willing to consider a claim of ‘equal protection’ violation against DOMA.

    And in both cases, there is the matter of how narrowly or broadly the rulings should be, as noted in the article.

    Do not expect the court to create marriage equality nationwide from these cases. When one considers the legal circumstances surrounding the Loving v. Virginia case for comparison, we are at a very different place with regard to the legal status of same-sex marriages, and as the article implies, the Roberts court is not the Warren court. The present day Supreme court reflects a polarization along political lines that has been growing in our government and society for some time. We will not get unanimous decisions in these cases. We will instead get a majority opinion and a number of partially concurring, partially dissenting opinions from several justices.

    I find Prop 8 a bit of a toss-up, but I’m inclined to be pessimistic about the chances for this court to uphold the lower court finding that the amendment is unconstitutional. With a majority of states having voter-enacted marriage amendments, this is a line the Court is likely going to be unwilling to cross.

    I will be surprised if DOMA’s Section 3 survives. Section 2 isn’t in question in this case, and it will remain intact.

    I also don’t think we’re going to get a ruling until the very last day (the 24th) – if we get one then.

  • Harley

    So let me see if I understand this. The repugnant-klans think a STATE case, Baker v. Nelson, ruling is precedent over a decision by the federal appeals court. Hmmmmm. I don’t get the logic. But then again, the repugnant-klans don’t really operate under logic. They seek only power and wealth. Logic really isn’t in their lexicon.

  • Ottoman

    @Harley: Baker v Nelson wasn’t a state case. It went to the US Supreme Court in 1971 where they dismissed it without hearing in one sentence as not applicable to the federal government. It became precedent by a quirk of the rules at the time. Most people with a brain (ie the pro gay rights side)realize that Baker has been overturned by Lawrence v Texas even though SCOTUS has not yet come out and said this. And the federal govt deciding to define marriage in DOMA definitely makes gay marriage a federal issue. This article is poorly written, as usual.

  • jwrappaport

    @Elloreigh: Spot on. If only they’d strike down DOMA on federalism grounds and Prop 8 on equal protection grounds. I predict a sham procedural ruling in which the Court shirks its duty as the last guarantor of equality under the law.

  • Elloreigh

    @jwrappaport: Agreed. Punting Prop 8 on the standing issue so that they don’t have to get into the equal protection stuff is a real possibility. It will be a real blow if they uphold Prop 8.

Comments are closed.