On Saturday we posted a piece by Indiana University Maurer School of Law Professor Steve Sanders regarding distinct paths the Supreme Court could take in the consolidated cases challenging states’ bans on same-sex marriage. Sanders' guest post was noted in a Jan. 18 article by The Washington Post’s Robert Barnes examining a number of thoughts on how the high court might handle the questions before it. The Atlantic contributing writer and law professor Garrett Epps also cited the Sanders' piece in a Jan. 19 article. (For more analysis of the questions before the justices, see University of Minnesota law school professor Dale Carpenter’s commentary for The Washington Post’s “The Volokh Conspiracy” blog.)
Today ACS Board member Paul M. Smith, a longtime Supreme Court litigator and partner at Jenner & Block, took note of the matter before the high court and looked ahead to the work remaining to stop discrimination against LGBT persons.
Smith, whose Supreme Court victories include the landmark case Lawrence v. Texas, which invalidated as unconstitutional a state’s sodomy law, told ACSblog:
It’s great to finally know that this Supreme Court will almost surely resolve the merits of claims for marriage equality this year. Many have commented at how quickly things have moved since the Court invalidated a key part of the Defense of Marriage Act in 2013 in the Windsor case. But that key ruling was itself the product of long years of hard work and struggle. The movement has had the advantage of being able to plan careful steps leading up to this moment – attacking the sodomy laws, seeking marriage equality under state constitutions, demanding that the federal government recognize existing marriages of same-sex couples despite DOMA, and now claiming a federal constitutional right to marriage equality. It looks as if that strategy will now be vindicated.
The New York Times is reporting today that many Republican political operatives are pleased at the prospect of the Court taking this issue out of the political debates by resolving it before the next presidential campaign. My guess, however, is that immediately after a victory on marriage equality the focus would shift rather strongly toward the need to prohibit private discrimination against LGBT persons and the opposition of most Republicans in Congress to a federal anti-discrimination law. That could become a significant issue in the upcoming campaign.