Supreme Countdown

Supreme Odds: How Will Justice Stephen Breyer Vote On Marriage Equality?

Stephen Breyer knows how to tiptoe around emotional landmines. It was he who raised the issue of  “sterile couples” when Yes on 8 attorney Charles Cooper argued that marriage laws are all about procreation and that domestic partnerships are sufficient for same-sex couples.

“What precisely is the way in which allowing gay couples to marry would interfere with the vision of marriage as procreation of children that allowing sterile … couples of different sexes to marry would not?” asked Breyer.

The Chief Justice of the Supreme Court, just three seats to Breyer’s left, is raising two adopted children with the woman two whom he is married. At the time they married in Washington, D.C., the city was not allowed to implement its domestic partnership law for both same-sex and male-female couples.

Cooper hesitated.

“Am I not clear?” asked Breyer. “Look, you said that the problem is marriage as an institution that furthers procreation.”

With further prodding from Justice Elena Kagan, Cooper offered –to considerable laughter in the stately courtroom— that “even with respect to couples over the age of 55, it is very rare that both…parties to the couple are infertile.”

It remains to be seen whether Breyer’s tough line of questioning persuaded the chief justice to consider the perils of the procreation argument. But it was a fair example of how Breyer works.

He is the wonky justice comfortable sparring with his conservative colleagues. He’s done so frequently in public with the court’s most conservative member, Antonin Scalia.

Born in San Francisco and raised in Massachusetts, Breyer’s liberal bent should surprise few. His voting record on LGBT-related cases tracks that of Justice Ruth Bader Ginsburg.

Here’s what the odds look like, statistically speaking, for Breyer, as well as some other factors to weigh in when considering how he might vote:

Percent voted pro-gay: 78

Percent voted with liberal wing: 66

Odds for two pro-gay votes: 3 to 1

Appointed by: President Bill Clinton

Age: 74

Religion: Jewish

 Most notable case: He’s never written a majority opinion or dissent in a gay-related case.  But in the infamous Bush v. Gore case in 2000, when the Supreme Court intervened to call the presidential race for George W. Bush, Breyer dissented as bluntly as one could, saying “The court was wrong to take this case.”

Interesting factoids:  Breyer’s been in the news as much for crashing his bicycle as he has for his judicial opinions. One of his more serious accidents, which landed Breyer in the hospital in 1993, may have prevented President Clinton from nominating him to the high court sooner. He’s crashed twice since being on the court and had to be hospitalized, most recently in April.

Notable remark during Prop 8 argument: He asked Yes on 8 attorney Charles Cooper, “what happens to your argument about the institution of marriage as a tool towards procreation, given the fact that, in California, too, couples that aren’t gay, but can’t have children get married all the time?”

Notable remark during DOMA argument: He tried to pin down BLAG attorney Paul Clement to explain why the argument for “uniformity” was sufficient to justify DOMA’s exclusion of married gay couples (Clement argued that Congress was simply seeking to make the definition of marriage uniform for all states, for the purpose of federal benefits). “I want to be able to have a list — you know, of really specific things that you are saying justify this particular effort to achieve uniformity,” said Breyer. “And I want to be sure I’m not missing any.”

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