April 27, 2015

Ten Predictions (And a Few Editorial Comments) for the Same-Sex Marriage Argument and Decision


ACSblog marriage equality symposium

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.

6.      Justice Ginsburg will ask a few questions based on a thoughtful amicus brief filed by liberal law professor Andrew Koppelman and libertarian law professor Ilya Somin arguing that bans on same-sex marriage amount to unconstitutional gender discrimination.  This argument has legs.  See below.

7.      Justice Roberts, not wanting Justice Kennedy to monopolize the glory, will concur in the result striking down the same-sex marriage bans on the basis that they amount to unconstitutional gender discrimination.  See No. 6.

8.      During the argument, Justice Scalia will compare bans on same-sex marriage to state bans on 1) polygamy, 2) adultery; and 3) prostitution.  These analogies are silly, but make them he will.

9.      In his eventual and inevitable dissenting opinion, Justice Scalia will rant and rave that judges should not impose their “law professor” values on the rest of America and that majorities have the right to discriminate against homosexuals on the basis that homosexuality is morally wrong but . . . wait for it . . . he of course has nothing against homosexuals (as opposed to laws relating to voting rights, affirmative action and campaign finance reform, all of which he has voted to strike down).

10.      After Justice Kennedy makes the historic announcement during the last week of June that all Americans have a constitutional right to marry the person of their choice and reads that decision from the bench, amazingly no human being will ever be able to see any video recording (or photograph) of that day at the Court.  Sadly, this is a fact not a prediction.