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