Mark April 28 on your calendar. That's the day the United States Supreme Court will hear oral argument on whether same-sex marriage should become legal throughout the nation.
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The justices will hear cases brought from the Sixth Circuit Court of Appeals, which is based in Cincinnati and encompasses Ohio, Michigan, Kentucky and Tennessee. The Sixth Circuit is the only federal appeals court thus far to rule that there is no constitutional right to same-sex unions.
Lawyers from both sides of the issue will have 90 minutes explain their legal reasoning (actually the justices do most of the talking, firing questions at the lawyers and sometimes jousting with each other). Another hour will be devoted to the issue of whether couples who are married in one state will retain their marriage if they move to a state where same-sex unions are not legal.
As usual the court will not televise the hearing or provide live-stream audio. However, recognizing the importance of the case, the court will make an audio recording and a transcript of the hearing available at 2 o'clock Eastern Time that afternoon. The court usually begins its hearings at 10 a.m., so by the time the audio is released, we will have learned from the questioning what the justices have on their minds.
The court has until June 30 to hand down a ruling. Don't expect the ruling to come sooner. The justices usually save decisions on the most important issues to the very last days of the court's term.
Background issues
OK. Now we're going deep in the legal weeds to sort out the underlying issues and how the justices might respond.
At the outset I should explain my frame of mind because it colors my analysis of the legalities. I would rather be pleasantly surprised by something I didn't expect than greatly disappointed about something I was counting on.
Back on November 6 of last year, the Sixth Circuit broke ranks with four other circuit courts when upheld bans on same-sex marriage in Ohio, Michigan, Kentucky and Tennessee.
Judge Jeffrey Sutton wrote the majority opinion, in which Judge Deborah Cook concurred. Senior Judge Martha Craig Daughtrey dissented. (Sutton and Cook were nominated by President George W. Bush; Daughtrey was chosen by President Bill Clinton.)
The court held that a challenge to a state ban on same-sex marriage did not raise "a substantial federal question." The court then sifted through the Supreme Court’s 2013 decision in United States v. Windsor, which struck down portions of the federal Defense of Marriage Act. Relying on an offhand comment in Windsor, the Sixth Circuit struggled mightily to conclude that it would be OK if states decided for themselves whether to sanction marriage equality.
The Sixth Circuit found no fundamental right to "gay marriage" and said same-sex couples were not deserving of constitutional protection because the Supreme Court never established that they had been a target of discrimination.
One of the strangest holdings of the Sixth Circuit's ruling is its declaration that there was no tangible proof that voters had discriminated against LGBT individuals when they passed statewide referenda limiting marriage to one man and one woman. The voters merely were trying to honor traditional marriage.
Judge Sutton called for judicial modesty: It was up to the nation's people, not the courts, to decide when it was time to recognize same-sex marriages.
"The federal courts have no long-lasting capacity to change what people think and believe about new social questions," Sutton said, conveniently overlooking Supreme Court rulings that outlawed segregation, sanctioned abortion and contraception, and enshrined privacy as a constitutional right.
Race and sexual orientation
Most of the Sixth Circuit's rationale is bullshit, of course. As flawed as its decision was, the appeals court raised one question that the Supreme Court may have to grapple with: Does the Constitution's requirement of equal protection trump another constitutional provision which gives states the power to enact their own laws in certain areas—such as marriage, which has historically been within the province of the states.
The one major exception involving marriage rights was the Supreme Court's ruling in Loving v. Virginia. In its 1967 decision, the justices used the Equal Protection Clause to overturn a state law that prohibited the marriage of couples of different races. The Sixth Circuit said Loving was inapplicable, explaining that a matter of race is not the same as a matter of sexual orientation.
There is some validity to that: Race has been a central and shameful factor in American history ever since Africans were brought to this country in chains. Race was a cause of the Civil War. It remained a major national issue throughout Jim Crow discrimination and the struggle for civil rights. Constitutional amendments and numerous laws were enacted over the years for the purpose of granting African-Americans the rights of property, voting and access to public accommodations, to name but a few examples. One need only look to yesterday's report by the Justice Department on the racist behavior of the police in Ferguson, Missouri. By contrast, we are latecomers to this kind of discrimination, and even then our problems pale in comparison.
However, the Supreme Court need not depend on Loving to establish a case for marriage equality. The justices could conclude that bans on same-sex unions violate the Equal Protection Clause under any standard of scrutiny because they are not rationally related to achieving any legitimate governmental purpose.
The justices can build on a small list of decisions which advanced LGBT issues: Windsor, for instance. In Lawrence v. Texas in 2003, the court overturned a state law that made it a crime for people of the same sex to engage in sexual relations. In Romer v. Evans in 1996, the court invalidated a provision of the Colorado Constitution that precluded LGBT individuals from filing discrimination claims based on sexual orientation.
The probable lineup
Some justices do have track records suggesting that they would support marriage equality. The court has nine justices and a ruling requires a majority of at least five.
It's a good bet that the four liberal justices will be in our corner: Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagen. All were nominated by Democratic presidents.
Three extreme conservative justices probably will rule against us: Antonin Scalia, Clarence Thomas and Samuel Alito. All were nominated by Republican presidents.
That leaves two wild cards. Both are conservatives placed on the court by Republican presidents.
Chief Justice John Roberts has decided only one case involving LGBT rights (Windsor), and he voted against us. Some legal analysts say he is young and may be in tune with today's social trends. They say that if his colleagues are lining up in favor of marriage equality, he may add his voice to lend greater legitimacy to the ruling. Yada yada. Don't count on it.
Justice Anthony Kennedy usually is regarded as the court's swing justice. He might as well be the only justice on the court, because his opinion often counts as the final word.
Insofar as LGBT issues are concerned, Kennedy stands out. His concept of liberty has include several protections for sexual orientation. He wrote the court's majority opinion in Windsor (2013), Lawrence v. Texas (2003) and Romer v. Evans (1996). That's an excellent track record.
If marriage equality is to be made legal nationwide, it will be thanks to Anthony Kennedy, who the justice who President Reagan selected because of his reputation for judicial restraint.
As usual the court will not televise the hearing or provide live-stream audio. However, recognizing the importance of the case, the court will make an audio recording and a transcript of the hearing available at 2 o'clock Eastern Time that afternoon. The court usually begins its hearings at 10 a.m., so by the time the audio is released, we will have learned from the questioning what the justices have on their minds.
Background issues
 |
| Judge Jeffrey Sutton |
One of the strangest holdings of the Sixth Circuit's ruling is its declaration that there was no tangible proof that voters had discriminated against LGBT individuals when they passed statewide referenda limiting marriage to one man and one woman. The voters merely were trying to honor traditional marriage.
Judge Sutton called for judicial modesty: It was up to the nation's people, not the courts, to decide when it was time to recognize same-sex marriages.
Race and sexual orientation
The one major exception involving marriage rights was the Supreme Court's ruling in Loving v. Virginia. In its 1967 decision, the justices used the Equal Protection Clause to overturn a state law that prohibited the marriage of couples of different races. The Sixth Circuit said Loving was inapplicable, explaining that a matter of race is not the same as a matter of sexual orientation.
The justices can build on a small list of decisions which advanced LGBT issues: Windsor, for instance. In Lawrence v. Texas in 2003, the court overturned a state law that made it a crime for people of the same sex to engage in sexual relations. In Romer v. Evans in 1996, the court invalidated a provision of the Colorado Constitution that precluded LGBT individuals from filing discrimination claims based on sexual orientation.
The probable lineup
 |
| Justice Anthony Kennedy |
Three extreme conservative justices probably will rule against us: Antonin Scalia, Clarence Thomas and Samuel Alito. All were nominated by Republican presidents.
Chief Justice John Roberts has decided only one case involving LGBT rights (Windsor), and he voted against us. Some legal analysts say he is young and may be in tune with today's social trends. They say that if his colleagues are lining up in favor of marriage equality, he may add his voice to lend greater legitimacy to the ruling. Yada yada. Don't count on it.
Insofar as LGBT issues are concerned, Kennedy stands out. His concept of liberty has include several protections for sexual orientation. He wrote the court's majority opinion in Windsor (2013), Lawrence v. Texas (2003) and Romer v. Evans (1996). That's an excellent track record.