The Same-Sex Marriage Cases: Snatching Victory...

Plaintiff Edith Windsor of New York, reacts as she looks toward supporters in front of the Supreme Court in Washington, Wedne
Plaintiff Edith Windsor of New York, reacts as she looks toward supporters in front of the Supreme Court in Washington, Wednesday, March 27, 2013, after the court heard arguments on the Defense Against Marriage Act (DOMA). The U.S. Supreme Court, in the second day of gay marriage cases, turned Wednesday to a constitutional challenge to the federal law that prevents legally married gay Americans from collecting federal benefits generally available to straight married couples. (AP Photo/Carolyn Kaster)

It is always risky to predict what the Supreme Court will do in a case based on the oral argument. Justices ask questions of the lawyers for a variety of reasons and the questions do not always reveal what the justices are actually thinking. Some questions, for example, are genuinely designed to help a justice think through the logic of the advocate's argument, whereas others are intended to demonstrate weaknesses in the advocate's position in an effort to "educate" other justices. Knowing exactly what is motivating any particular question is a tricky business and prognosticators often misjudge what's really going on.

Having offered this caveat, let me now offer my own predictions about Perry and Windsor. (To understand the title, you have to read to the end!)

In Perry, which involves the constitutionality of Proposition 8, several possible outcomes are on the table:

First, the Court could hold that Proposition 8 (which denied same-same couples the right to marry) is constitutional. That will not happen. At the very least, five justices -- Kennedy, Ginsburg, Breyer, Sotomayor and Kagan -- absolutely will not accept that position. I guarantee it. They will not be party to the modern equivalent of Plessy v. Ferguson.

Second, there is the opposite possibility -- the Court will hold that Proposition 8 is unconstitutional and that any law denying the right of same-sex couples to marry is unconstitutional. I am confident that if these nine justices had no choice but to choose between the first and second possibilities, at least five of them would opt for the second (Kennedy, Ginsburg, Breyer, Sotomayor and Kagan). That, in my view, would be the "right" result under the Constitution.

But the justices are unlikely to reach that result. This is so because, as revealed in the oral argument, at least a few of these five justices seem concerned about the Court getting too far ahead of public opinion. Rather than hand down a decision that might trigger a fury of opposition, they seem inclined to let the matter percolate for a while longer before reaching the "right" decision.

This is unfortunate, but understandable. It is understandable because, like most of us, the justices want things to go smoothly. It is unfortunate because, while the justices bide their time, tens of thousands of individuals and their children will be denied the many important benefits of marriage and will continue to be subjected to the indignity of second-class citizenship.

Third, there is the possibility that the Court will hold Proposition 8 unconstitutional on narrow grounds. For example, the Court could hold Proposition 8 unconstitutional for reasons directly connected to the situation in California -- without deciding whether other states must also allow same-sex marriage. The United States argued in Perry, for example, that Proposition 8 is unconstitutional because a state (like California) that allows civil unions does not have a sufficiently persuasive reason for not taking the additional step of allowing same-sex marriage.

It appears from the oral argument that at least some of the five justices who seem sympathetic to a constitutional right to same-sex marriage are not enamored of this approach. Although this argument has a certain logic, and has the benefit of proceeding one step at a time, Justice Ginsburg and others seemed to think it "odd" to hold that a state that goes three-fourths of the way has to go all the way, whereas a state that is still on the starting line can simply stay there.

Fourth, the Court can essentially ditch the case and avoid the core issue completely. It can do this in one of two ways. It can hold that the defenders of Proposition 8, who were allowed by the lower courts to intervene in the case, do not have "standing" to represent the interests of California when California itself has refused to defend the law. On that view, the Court would essentially punt and reach no decision on the constitutionality of Proposition 8. That would reinstate the decision of the lower federal court to the effect that Proposition 8 is unconstitutional. Alternatively, as suggested by Justice Kennedy during the oral argument, the Court could simply dismiss the case without reaching any decision at all (even on the issue of standing) and just say, in effect, "Sorry for wasting everyone's time, but we shouldn't have agreed to hear this case." The Court does do this on occasion.

The general consensus among Court-watchers seems to be that the Court will adopt some version of the fourth possibility, rendering the Court's review of Perry much ado about nothing. For those who feared that the Court might uphold Proposition 8, this is a welcome outcome. But because I am confident that there was zero risk that the Court would uphold Proposition 8, I find this outcome disappointing. If this is what the Court does, it will be a missed opportunity to move the law in the right direction, even if the Court chose to take only a half-step.

That brings me to Windsor -- the DOMA case. For purposes of federal benefits, DOMA defines "marriage" as including only a man and a woman. DOMA therefore denies more than 1,000 federal marriage benefits to same-sex couples who are legally married in their own states. What will the Court do with DOMA? There are three possibilities.

First, the Court might uphold DOMA. This will not happen. At the very least, five justices -- Kennedy, Ginsburg, Breyer, Sotomayor and Kagan -- absolutely will not accept that position. They will not affirmatively hold that the government can constitutionally deny same-sex couples the right to marry.

Second, the Court might hold DOMA unconstitutional on federalism grounds. This is the argument that seemed to engage Justice Kennedy. The argument is that because marriage is a matter within the constitutional authority of the states, the federal government has no business defining "marriage" in a way that excludes same-sex marriages that have been lawfully recognized by some of the states.

Although Justice Kennedy seems intrigued by this argument, he shouldn't be. It makes no sense. Although it would clearly violate principles of federalism for the federal government to prohibit states to recognize same-sex marriages or to require states to recognize marriages between 14-year-olds, the federal government can decide for itself how to distribute federal benefits. The federal government could decide, for example, to give federal benefits only to couples that who have been married for at least five years. Federal policies about eligibility for federal benefits do not sufficiently interfere with the authority of the states to violate the Constitution. In the end, I think Justice Kennedy will come to this conclusion. The federalism objection just doesn't fly.

Third, the Court might hold DOMA unconstitutional because it discriminates against gays and lesbians. This, I predict, is how the Court (or at least justices Kennedy, Ginsburg, Breyer, Sotomayor and Kagan) will resolve Windsor. In effect, they will hold that discrimination against gays and lesbians is presumptively unconstitutional under the Equal Protection Clause and that the federal government's interest in discriminating against legally married same-sex couples does not further a sufficiently important government interest to justify such discrimination.

This approach will leave unresolved the ultimate question of whether same-sex couples have a constitutional right to marry, because the state interests in denying same-sex couples the freedom to marry are different from the federal interests in declining to give equal benefits to legally married same-sex couples. Equally important, when the Court embraces this approach in Windsor it will take it 80 percent of the way towards holding that same-sex couples have a constitutional right to marry. And with that precedent in place, it will be only a matter time (hopefully, a short time), before the Court closes the loop.