Noah Parrell

The Supreme Court decided Friday to review the fate of same-sex marriage in the United States.

"We are finally within sight of the day when same-sex couples across the country will be able to share equally in the joys, protections and responsibilities of marriage," said Jon Davidson, the legal director of Lambda Legal.

Seated, from left: Justices Thomas and Scalia;
Chief Justice Roberts; and Justices Kennedy
and Ginsburg. Standing, from left, Justices
Sotomayor, Breyer, Alito and Kagan.

The justices agreed to hear appeals originating in four states—Ohio, Michigan, Kentucky and Tennessee. They justices have wide latitude on how to rule on these cases.

The best-case scenario is a recognition that the United States Constitution must allow same-sex marriage nationwide.

The worst is a finding that there is no constitutional right to same-sex marriage. Such a decision would restore prohibitions that had been invalidated by trial and appellate courts.

And there are a lot of possibilities in between.

During their conference on Friday the court issued an order asking litigants in both sides of the debate to respond to two related constitutional questions:

First, does the Fourteenth Amendment to the Constitution require a state to license a marriage between people of the same sex? Traditionally states have the right to define marriage. Despite this, the court has held in the past that state marriage laws can be overturned as unconstitutional, as in the 1967 case of Loving v. Virginia, which had prohibited interracial marriage.

Second, does the Fourteenth Amendment require a state to recognize a same-sex marriage that was performed lawfully in a different state? Let's say a couple was married in New York, where the Legislature authorized same-sex marriage. Would the couple lose their marriage rights if they moved or traveled to Alabama, where the law defines marriage as between one man and one woman?

It is expected that the court will hear oral argument in late April, then reach a decision by June 30.

The legal background

Here's a bit of background.

The Fourteenth Amendment is the fundamental civil rights protection. It says that no state "shall make or enforce any law which shall abridge the privileges … of citizens of the United States." The amendment further prohibits any state from denying "to any person within its jurisdiction the equal protection of the laws."

The Supreme Court has acted on same-sex marriage laws twice before, in June 2013.

The court let stand one case, Hollingsworth v. Perry, which involved California's Proposition 8 anti-marriage referendum. The justices did not express an opinion on whether same-sex marriage was legal in the state.

The second case, United States v. Windsor, was more important. The court invalidated a provision of the Defense of Marriage Act which obstructed more than a thousand federal laws affecting married same-sex couples.

Justice Anthony Kennedy, a swing member of the court, joined the court's four liberals in pointing to the dignity of same-sex relationships. The majority also agreed that same-sex couples and their families suffered from federal policy that treated their marriages as invalid. However, Windsor went on to note that the states' policies on marriage deserved respect. Windsor was based on federalism grounds, not equal protection.

Windsor opened the flood gates for lower courts to rule that states could not ban same-sex marriage. Federal judges in 20 other states have since found that same-sex marriage is permissible.

(Another 16 states permit same-sex marriages on the basis of state court rulings, state legislation or referenda. Of the 37 states overall, more than 70 percent of Americans live in places where same-sex couples can marry.)

What the future holds

Bringing us to the future, the Supreme Court apparently will have to deal squarely with the equal protection issue that it avoided in Windsor.

The court will decide rulings from the federal Sixth Circuit Court of Appeals, which covers the states of Ohio, Michigan, Kentucky and Tennessee. The Sixth Circuit is the only appeals court to rule against marriage equality. Four other appeals courts allow the practice.

The Supreme Court seeks to settle "splits in the circuits"—cases where one appeals court rules one way and another appeals court rules in the opposite direction. The law must be kept uniform throughout the nation.

On Friday evening, the Obama administration announced that it will file a brief on behalf of same-sex couples in the Sixth Circuit cases.

Attorney General Eric Holder said the Justice Department will file a "friend of the court brief" urging the Supreme Court to allow same-sex marriage. "It is time for our nation to take another critical step forward to ensure the fundamental equality of all Americans—no matter who they are, where they come from, or whom they love," Holder said.

What legal scholars say

The court has numerous options before it.

The preponderance of legal scholars believe that the Supreme Court will rule that same-sex marriage is a constitutional right. For instance, Steve Sanders, a teacher of constitutional law at the Indiana University in Bloomington, wrote Friday in Scotusblog that the actual reason same-sex marriages have been prohibited is fear, misunderstanding and hate. The law was "motivated by a desire to discriminate."

Sanders recalled that in the 1980s and 1990s, there was a campaign nationwide to ban same-sex marriage by state referendum. One advocate, Ohio's secretary of state, likened gays and lesbians to "backyard animals." Opponents of marriage equality "whipped up fears" that gays would recruit children. They made opposite-sex couples "afraid" that their "freedom would be taken away."

Since then, data from the American National Election Survey found a sea change in opinion about same-sex marriage. In many states, including my native Pennsylvania, a majority of those polled support same-sex marriage. Even so, constitutional rights should not be subject to the whims of the majority, Sanders said.

Justice Kennedy is the key

As you may know from my previous writings, I believe that the chances of a fully favorable ruling on the constitutional question of same-sex marriage is perhaps 50-50.

It's true that Justice Kennedy, a moderate conservative appointed by President Reagan in 1988, wrote the 6-to-3 majority opinion in favor of gay man in the Lawrence v. Texas sodomy case in 2003. And it's true that Loving v. Virginia was decided in the 1960s on equal protection grounds.

But the two cases are not identical to the issue of same-sex marriage. Although most prosecutions for sodomy were reserved for gay men, the justices may have recognized that many heterosexuals engage in the practice as well. Loving was decided in the heat of the civil rights struggle, when the treatment of African-Americans was pernicious in the South. Also, at the time a majority of the justices were liberals.

One other point is worth noting: It's possible for the justices to reach a majority conclusion in favor of same-sex marriage without agreeing that the practice violates the equal protection clause of the constitution.

One path was blazed by Seventh Circuit Judge Richard Posner in overturning Wisconsin and Indiana's bans on same-sex marriage. Posner, one of the foremost legal scholars in the federal judiciary, sidestepped the Fourteenth Amendment's equal protection clause altogether. Instead, he ruled that the states practiced "insidious discrimination" by creating an overly broad policy of marriage and procreation that served no reasonable basis.

The result may be the same for practical purposes but the legal implications are quite different.

I'd like to be proven wrong about the constitutional question. Predicting what the Supreme Court will do in these cases is nothing but guesswork anyway. We might get some inkling in the oral argument in April—particularly if Justice Kennedy plays a vocal role in the questioning. Even so the oral argument sometimes means little when it comes time for the justices to put their thoughts on paper. We'll have to wait when the court's opinion comes out in June.