by Eric J. Segall, Kathy and Lawrence Ashe Professor of Law, Georgia State University College of Law. Follow Professor Segall on Twitter @espinsegall.
*This post is part of ACSblog’s symposium on the consolidated marriage equality cases before the Supreme Court.
On April 28, the Supreme Court will hear arguments challenging the same-sex marriage bans currently in place in Kentucky, Ohio, Tennessee and Michigan. Here are my predictions for both the argument and the ultimate decision (in ascending order of certainty).
1. After the questioning stops and Chief Justice Roberts officially closes the oral argument with his consistent mantra, “The case is submitted,” no human being will ever be able to see any video recording (or photograph) of this historic day at the Court. Sadly, this is a fact, not a prediction.
2. During the argument, Justice Thomas will 1) not utter a syllable; 2) look uncomfortable for most of the argument; and 3) eventually write a dissent saying he would of course not vote for the bans on same-sex marriage if he were a legislator but nothing in the Constitution prevents states from adopting them. This could be avoided if Justice Thomas would just re-read the Equal Protection Clause (no “person” shall be denied the “equal protection of the laws”).
3. Justice Kennedy will try to out gun Judge Posner’s shredding of lawyers who tried to defend the same-sex marriage bans on the basis that they somehow further the states’ interests in the welfare of children and the family. Kennedy will come close to matching Posner’s witty ire but he won’t succeed.
4. Justice Kennedy will eventually write a decision striking down the same-sex marriage bans on the basis that there are no rational reasons for the bans other than unconstitutional dislike of gays and lesbians. His decision will not be as entertaining or persuasive as Posner’s, but it will count a whole lot more.
5. No Justice will ask about the perplexing amicus brief filed by “same-sex attracted” men (and their wives) arguing that overturning same-sex marriage bans would be an affront to their “dignity.” Please don’t ask me to explain this brief.