Scroll To Top

Supreme Court Post-Gaming: What's Kennedy Thinking?

Supreme Court Post-Gaming: What's Kennedy Thinking?

The Advocate: Professor Siegel, you attended the hearing. Give us your prediction for the ruling.
Neil Siegel: I came in thinking it was very likely the same-sex couples would win and I thought it very likely because of the signals the court set in the Windsor case in 2013 and because the court had repeated opportunities to put a stop to all the lower courts invalidating state bans and they declined them. … Going in I was very confident the plaintiffs were going to win, and going out I’m still confident they’re going to win.

Justice Kennedy, long believed the swing vote on the ruling, made a point that opposite-sex marriage has been an institution for “millennia.” Should that give marriage equality proponents pause?
I understand why journalists are saying the court is cautious and divided. Justice Kennedy said some things both sides could take heart in. But the thrust of his concerns were very much that he was troubled by the arguments the states were making to defend their bans and he wasn’t seeing any basis for excluding gay couples from the institution of marriage and the dignity that it confers on those couples.

I remain very confident the court is going to invalidate the ban by at least a vote of 5-4. That’s probably the most likely outcome; it’s possible it could be 6-3 if the chief justice joined Justice Kennedy and the liberals. That’s quite uncertain. The chief said more in support of the states than in support of the challengers. He also asked about sex discrimination — whether this was unconstitutional sex discrimination to allow a man to marry a woman but not a woman to marry a woman. But the chief’s instincts are going to be in favor of the states leaning on the democratic process.

Tell us more about Justice Kennedy’s role in the hearing.
Justice Kennedy really had difficulty comprehending the states’ argument, because I really think it’s quite a strained argument. Out of the gate, Justice Kennedy began with an expression of concern when he said the institution for millennia has been limited to opposite-sex couples and the court was hesitant to tell the states they know better. I think he received a series of answers throughout the hearing, from the lawyers and his colleagues, which assuaged his concerns. He himself said the empirical evidence we have strongly suggests that there is no harm associated with allowing same-sex couples to marry… and a lot’s changed since Lawrence [v. Texas] in 2003. It’s also been observed we’ve been debating this for decades and Justice Ginsburg observed the institution of marriage itself for was a very different institution for millennia, an institution under the laws of coverture, in which women were subordinate to their husbands and their separate legal existence ended when they became married. That wasn’t an institution as it existed then that same-sex couples would want to be part of. It evolved in terms of gender and racial relations. The institution of marriage has undergone substantial changes, and the court has insisted on them in the name of the Constitution and not said, “Well, it’s been a certain way for a long time, we’re going to leave it that way.”

A few things are most telling. [Kennedy] said what he did about millennia, and I think that’s why journalists are saying the court is cautious. First, none of this changes the fact [Kennedy] let it get this far. For him to say now, “I didn’t mean it or you all inferred what I didn’t imply,” I think that would be really surprising.

It’s also telling what we didn’t hear questions about. We didn’t hear questions about if we rule for the states [fighting marriage equality] what will the legal status be of same-sex couples who got married in states subject to judicial order? If the states can now ban the marriages, what happens to their legal status? Are they in limbo? Can they be undone? I didn’t hear [those questions].

The basic argument of the states is that in some way if same-sex couples are allowed to marry, a message will be sent by the state to opposite-sex couples that marriage is primarily about their own gratification and fulfillment; it’s not about raising children in a stable environment. Justice Kennedy was offended by that. He said that was a wrong premise; that same-sex couples seek the same kind of dignity and status, the same noble motivations that opposite-sex couples do. It may not be about procreation, but it may be they also might want to raise children in that environment. They all struggled with the argument, because I don’t think the argument worked.

Siegeln 0
What the states actually are doing is what Justice Scalia said [antigay defendants] were doing in 2003, which is expressing moral disapproval [of gays]. But they’re not allowed to say that because the court took that off the table in Lawrence and in [United States v.] Windsor. So they have to come up with this argument that the majority of the court, including Justice Kennedy, was struggling to comprehend — given that heterosexuals can marry even if they can’t or won’t procreate, even if they’re old, even if they’re infertile. Given that same-sex couples raise kids in stable environments, I think they really weren’t buying that argument. That’s why he seemed assuaged of the millennia issue, and I never heard him once offer any kind of sympathy toward the states’ rationale for the bans. I heard a combination of incredulity, incomprehension, and to some extent, expressing that the way the states were characterizing same-sex couples was, in some way, demeaning.

Were there any conservative justices who looked swayed by the pro-marriage arguments?
I don’t see Justice Scalia, Thomas, or Alito, based upon their votes and opinions in past cases as well as what Justices Scalia and Alito said today, I don’t see any chance [they'll strike down the bans]. There are three votes to affirm and uphold the bans. Justice Thomas doesn’t speak, as is his custom, but I’m just going on his past opinions.

I also don’t think Ginsburg, Breyer, Kagan, and Sotomayor are going to uphold these bans. The only ones potentially in play are Kennedy and Roberts. Kennedy, I’m confident, is going to be with the liberals like he was in every other gay rights case since the Romer [v. Evans] case in 1996. Roberts did ask a question about sex discrimination. Most of what he said was in favor of the states, but he seemed more subdued this time than during Windsor. This is one of those legacy cases — a historic case. Does he want to dissent in it? Might he want to write the opinion? I think it’s more likely that Roberts will dissent and it will be 5-4. I think his actual views came out last time during Windsor as well as during today’s arguments. 

 

NEIL SIEGEL is a professor of law and political science at Duke University's School of Law, specializing in constitutional law, and has focused much of his recent research and scholarship on same-sex marriage.

From our Sponsors

READER COMMENTS ()