by Adam Winkler, Professor of Law, UCLA School of Law. Follow Professor Winkler on Twitter @adamwinkler.
*This post is part of ACSblog’s symposium on the consolidated marriage equality cases before the Supreme Court.
Oral argument in the Supreme Court can be opaque, especially for those who aren’t well versed in the legal issues at stake or the precedents likely to be considered. During oral argument, the justices aren’t interested in educating the citizenry. They are trying to gain a better understanding of the case or subtly influencing the votes of their colleagues, so the questions and comments fly quickly—and usually right over the heads of anyone but the experts. Because oral argument in the same-sex marriages cases will draw an extraordinary amount of public attention, here’s a list of five things to watch for when the justices hold Court on April 28.
1. Justice Kennedy
The first and most obvious thing to pay careful attention to is the questioning by Justice Anthony Kennedy. With four justices who lean liberal and four who lean conservative, the Supreme Court has long been the Kennedy Court. Because Kennedy has written all the major pro-gay rights decisions of the Supreme Court in recent years, many people assume he’ll vote in favor of marriage equality. If I were a betting person, that’s where I’d put my money, too. Yet it’s worth remembering that Kennedy’s opinions in those cases have always been compromises. In Romer v. Evans, he declined to say that sexual orientation was a suspect classification. In Lawrence v. Texas, he didn’t say gay intimacy was a fundamental right that triggered strict scrutiny. In U.S. v. Windsor, half his opinion rested on states’ rights. If Kennedy was serious in Windsor’s ode to the traditional autonomy of states over marriage, it could spell trouble. That’s why it’s worth paying close attention to what Kennedy says at oral argument. Is he skeptical of the state’s arguments? Does he express concern about the implications of overturning the marriage bans? Or does he emphasize the harms that come from denying LGBT couples marriage? Kennedy, in this as in most other cases, is the vote that counts.
2. Baker v. Nelson
Often lost in the current debate over marriage is that the Supreme Court has already held there is no constitutional right to same-sex marriage. Or at least that’s one way to read Baker v. Nelson, a 1971 case that raised the issue. The Minnesota Supreme Court upheld that state’s restriction of marriage to one man and one woman, and the case was appealed to the Supreme Court of the United States. The justices summarily affirmed the lower court decision “for want of a substantial federal question.” In other words, the challenge to the marriage ban didn’t even raise a colorable constitutional claim. Will the justices treat Baker as binding precedent warranting their deference under the principle of stare decisis? There are good reasons to believe they won’t. The law and society has changed immensely since 1971. Back then, laws discriminating against women didn’t even trigger any form of heightened review. Besides, do the justices ever really treat any prior decision as binding?
3. The Standard of Review
One of the continuing challenges for LGBT rights has been the Supreme Court’s ― read Justice Kennedy’s ― failure to declare sexual orientation a suspect classification. As a result, laws that discriminate against gays and lesbians are often treated to the most lenient form of judicial scrutiny, rational basis review. This makes it hard to combat discriminatory laws such as state bans on gay adoption. The time has come for the justices to declare that LGBT discrimination is suspect, not just when it comes to marriage but in all cases. Will they? Look for justices asking questions about what are known as the “Frontiero Factors,” named after an important sex discrimination case. Do the justices ask about the relative political power of the LGBT community? Do they ask if sexual orientation is an immutable characteristic? Do they show concern for other forms of discrimination against LGBT people? These are all key considerations for the justices in deciding whether heightened scrutiny is appropriate.
4. The Second Question
If the justices are certain to declare a constitutional right to marriage equality, one mystery is why they also agreed to hear arguments on a second question: whether states can refuse to recognize same-sex marriages performed in other states. This is an important question ― if there’s no constitutional right to marriage equality. For states that refuse to allow LGBT couples to marry, out-of-state marriages could threaten their prohibitions. Yet if states have to allow LGBT couples to marry within their own states, then this second question becomes more or less irrelevant. Out-of-state same-sex marriages can’t undermine the state’s policy on marriage if the state’s policy on marriage is ― due to the Constitution ― to allow same-sex marriages. So why did the Court agree to hear argument on this second question if, as many assume, a constitutional right to marriage equality is a fait accompli? One possibility is that the state recognition issue offers a compromise, a half step for a justice like Kennedy. He could say there is no constitutional right to marry but states can’t refuse to recognize lawful marriages conducted in other states. This would allow a lot of LGBT couples to marry ― though not all ― and allow states some measure of autonomy over who can marry in their own states. Listen to see how seriously Kennedy ― and perhaps the Chief Justice, who might find such a compromise attractive ― take the state recognition issue.
When the Supreme Court decided that the Constitution guaranteed an individual right to bear arms, many people called the Court’s decision a “triumph of originalism.” The Court’s extensive historical discussion of the original meaning of the Second Amendment was perceived as a sign that Justice Antonin Scalia had finally won his tireless battle against “living constitutionalism” ― the idea that the Constitution’s protections evolve over time. In the same-sex marriage cases, however, originalism seems to be on the ropes. How often have you heard someone say that there is no right to same-sex marriage simply because the people who adopted the Fourteenth Amendment didn’t intend for that provision to have such an effect? Or who argue the opposite? There are amicus briefs making originalist arguments to the Court, but it was telling that the states directly involved in the case barely even nodded to history. Do any of the justices say anything about the original meaning of the Fourteenth Amendment? Scalia might. But the others? If not, that’s a good sign that, no matter how much Scalia protests, we really do have a dynamic Constitution whose grand generalities must keep up with the times.
A final note of caution is in order. Oral argument is a notoriously hard way to predict how the justices will ultimately rule on a case. In one of the famous school segregation cases, the lawyer defending “separate but equal” was asked almost no questions at all and yet lost 9-0. So perhaps there’s a sixth thing to watch for during oral argument: Which justices remain silent? That could be a sign that, for that justice at least, the case has already been decided. Which way, however, is anyone’s guess.