5 Things to Look for in the Same-Sex Marriage Arguments

During oral argument, the justices aren't interested in educating the citizenry. The questions and comments fly quickly -- and usually right over most people's heads. To help out, here are five things to look for in Tuesday's oral argument.
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Tuesday the Supreme Court will hear oral argument on the constitutionality of bans on same-sex marriage. 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 to subtly influence the votes of their colleagues, so the questions and comments fly quickly -- and usually right over most people's heads. To help out, here are five things to look for in Tuesday's oral argument.

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 US 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 playing 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 1972 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 1972. Back then, laws discriminating against women didn't even trigger any form of heightened review. Today, there are numerous other precedents helpful to the LGBT challengers.

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 must allow LGBT couples to marry within their own states because there's a constitutional right to marry, then this second question becomes more or less irrelevant. Out-of-state same-sex marriages can't undermine the state's prohibition on same-sex marriage if the state doesn't prohibit same-sex marriage. 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 would 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.

5. Originalism

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 controversy, 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 mentioned the original meaning of the Fourteenth Amendment. Do any of the justices (other than Scalia) say anything about originalism? 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, which bodes well for the LGBT challengers to the marriage bans.

A 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 desegregation 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.

The Court's decision in the same-sex marriage case is expected in late June.

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