Will the Supreme Court Uphold Gay Marriage Ban?

Today, the Supreme Court agreed to hear a landmark case challenging the constitutionality of California's ban on gay marriage. But don't count on a game-changing decision too quickly. It's more likely that Ted Olson and David Boies' blockbuster will end with a whimper.
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Today, the Supreme Court agreed to hear a landmark case challenging the constitutionality of California's ban on gay marriage. The California case, brought by Supreme Court superstars Ted Olson and David Boies, was designed from the beginning to obtain a bold, revolutionary ruling by the justices declaring gay marriage a constitutional right.

If Olson and Boies -- who famously went head-to-head in the notorious Bush v. Gore case -- win, it could mean that all bans on gay marriage, everywhere in the country, will be overturned. Gay and lesbian people from Beverly Hills to Bangor will finally enjoy an equal right to marry the person they love.

Yet don't count on a game-changing decision too quickly. It's more likely that Olson and Boies' blockbuster will end with a whimper.

Olson and Boies are right that in the closely divided Court, the justices' sentiments are with them. Four justices are likely to support marriage equality -- Stephen Breyer, Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan -- and three justices equally certain to oppose it: Antonin Scalia, Clarence Thomas, and Samuel Alito.

That leaves two potential swing votes: Chief Justice John Roberts and Justice Anthony Kennedy.

Roberts is very firmly in the conservative camp on nearly every hot-button issue that comes before the Court. He's voted with the right wing of the Court to strike down affirmative action plans, restrict access to abortion, deny victims of discrimination back pay and allow corporations to spend unlimited amounts of money on elections. Given that track record, Roberts seems likely to vote to uphold bans on gay marriage.

But then there's the Obamacare case. His vote to uphold President Obama's healthcare law went against his typical pattern in controversial cases. No one knows why he cast his vote the way he did in that case -- few legal experts give much credence to his argument that the law was a tax -- but the most likely possibility is that Roberts sincerely worries about the institutional legitimacy of the court he shepherds. Roberts must know that long before his tenure as chief justice is up in 25 years or so, any decision by the court upholding bans on gay marriage will seem retrograde and foolish. That won't stop Scalia and Thomas, but it might stop Roberts.

Kennedy is a Catholic appointed by President Ronald Reagan, so one might predict he'd be hostile to claims of gay marriage. Kennedy, however, voted in favor of equality in the Supreme Court's two biggest gay rights cases of the past twenty years, Romer v. Evans and Lawrence v. Texas. The first case, from 1996, overturned a Colorado law that barred cities like Denver and Aspen from enacting anti-discrimination protections for gay and lesbian Americans. The second, from 2003, struck down a Texas ban on same-sex sodomy among consenting adults. The opinions in both cases were written by Kennedy.

Yet, even for Kennedy, gay marriage may be a bridge too far. And Olson and Boies' case, despite being carefully and strategically crafted to goad the Supreme Court into ruling on the constitutionality of gay marriage nationwide, has a number of escape routes for Roberts and Kennedy.

There might even be some surprising reluctance from the left wing of the Court. Take Ruth Bader Ginsburg. There's little doubt she'd like to strike down bans on gay marriage, but she may prefer to go slow. Ginsburg, who cut her teeth as a women's rights advocate, has criticized Roe v. Wade, the abortion decision, for going too far too fast. She supports abortion rights but has argued that if the Court had issued a more narrow ruling in Roe, we might not have seen the tremendous backlash sparked by the decision. Abortion rights might well have grown through the political process instead.

Gay marriage is similar. There's a risk of backlash from a bold opinion and, if the Court stays its hand, the political process is clearly trending towards allowing gay and lesbian Americans to marry.

One way the Court may skirt a bold ruling is procedural. The justices could rule that the case was not defended by the right party and remand the controversy to the lower courts. Usually when there's a challenge to a state law -- like California's Proposition 8 -- the state's attorney general goes to court to defend it. In Olson and Boies' case, however, California's attorneys general and governors have steadfastly refused to defend the law, which they've argued is discriminatory. With no one else to defend the law, the trial court allowed the group that put Proposition 8 on the ballot to substitute for the state government.

This was controversial because the group doesn't satisfy the usual requirement that a party to a case have an unusual, highly individualized interest in the case that's different than the average citizen. Indeed, in a Supreme Court case decided not long ago, the justices suggested that initiative backers are not appropriate parties to defend a state law. So don't be surprised if the justices declare that Olson and Boies' case was never properly defended and remand it to the lower courts to try again.

Another out for the Court would be to allow gay marriage in California alone. Rather than issue a landmark ruling that mandates all states to permit gay individuals to marry, the Court could focus on the particular facts of Proposition 8. What's different about California is that the state at one point allowed gay marriage. After the state Supreme Court held that California's own constitution required marriage equality, approximately 18,000 gay and lesbian couples were married in the state. Proposition 8 changed California's constitution to prohibit further gay marriages -- effectively taking away a right that gay and lesbian citizens already had.

The justices might well rule that taking away a right is substantively different from refusing to extend a right in the first place, in which case the existing bans on gay marriage in other states will stand.

This latter approach was the one taken by the court of appeals in the Olson and Boies case. Even though written by legendary uber-liberal Stephen Reinhardt, who prides himself on being to the left of nearly every other federal judge in America, the court of appeals' opinion carefully avoided declaring gay marriage a constitutionally protected right for all Americans. Reinhardt's opinion hewed closely to the language and reasoning of Kennedy's opinion in the Colorado case from 1996, saying the problem with California's law was in how it was enacted.

If the Supreme Court takes either tack -- turning back the challenge for procedural reasons or limiting its ruling to California -- it will still be a victory for gay rights, even if it is less than Olson and Boies were originally hoping for. If the justices say Proposition 8's backers weren't appropriate parties, the case would be returned to the lower courts. California's attorney general and governor, however, are certain to refuse to defend the law, which means a victory for Olson and Boies. Gay marriage would then be legal in California.

If the justices cabin their ruling to California alone, that too would allow California to begin allowing gay couples to marry. Either way, tens of thousands of LGBT people would gain the right to marry.

That would be a major victory for gay rights, though not the bold and revolutionary one Olson and Boies originally sought.

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