Court May Take Bipartisan Path on Marriage

By Jonathan Tomczak

In two months, the Supreme Court will unveil their decision regarding two same-sex marriage cases. However, anyone hoping for the next Brown or Roe is likely to be disappointed.

If Justice Anthony Kennedy writes the decisions, he will likely say both laws infringe upon the state's ability to govern itself and its citizens. 

This will not fully garner the results that the liberals want, but in some ways it will strengthen the states' rights doctrine that conservatives champion. It would be a textbook Kennedy move, striking the Defense of Marriage Act nationwide while expanding same-sex marriage only to California. 

The court's decisions have been mainly moderate, reflecting the split ideologies of the justices. This has been the case for some 30 years, since the appointment of now-retired Justice Sandra Day O'Connor. 

It takes five members to make a majority in a case, and that fifth vote has often been difficult to attain. Typically, the court's official decision is often dictated by the justice most likely to waver. In this way, the official law of the land is set by a moderate, or someone who didn't already make up their mind. 

Today, with the other justices more or less ideologically entrenched, that role has fallen almost exclusively to Kennedy.

Let's assume, however, that the court makes a decision in both cases. That's when Kennedy's power will become evident. In the past, the Reagan appointee has ruled differently on gay rights; he has stricken sodomy laws while upholding the right of the Boy Scouts of America to ban gay scoutmasters. While this might seem erratic, there may be an underlying logic that makes sense of all of it.

In each of those cases, Kennedy has tied his decision not to the Equal Protection Clause of the 14th Amendment, but some other constitutional right, such as privacy. This ruling reflects his rearing as a devout Catholic who nonetheless likes to be in the center and is always concerned with the real-world, human effects of the court's decisions. 

Kennedy may at times be overly dramatic with his decisions, but every former clerk that has been interviewed has said that he thinks long and hard for every decision. Unlike the Citizens United decision, which was largely an economic case, the Proposition 8 and DOMA cases before the court now have a daily impact on people's lives, a fact Kennedy mentioned during oral arguments in March.

What does this mean for those cases? It is unlikely that either Proposition 8 or DOMA will survive. However, this will probably not be based on the Equal Protection Clause. 

Kennedy is not a true moderate. In many ways, he is conservative to the core. However, in these two cases, the odds are against opponents of same-sex marriage. It won't be the final nail in the coffin liberals want, but like every other step so far in the battle for marriage equality, it's progress.