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发帖数: 4174 | 1 Adam Winkler.Professor at UCLA School of Law
Posted: August 4, 2010 05:56 PM
How Will the Supreme Court Rule on Same-Sex Marriage?
Wednesday's landmark decision by a federal court that California's ban on
same-sex marriage violates the U.S. Constitution begins to pave the way for
an eventual Supreme Court decision on marriage equality. How will the
Supreme Court rule?
When the California case was first filed by the all-star legal team of Ted
Olson -- who argued Bush v. Gore for George W. Bush and then became his
Solicitor General -- and David Boies -- who, ironically, represented Al Gore
in the disputed presidential contest -- the leading gay rights
organizations, joined by the ACLU, came out against the lawsuit. They shared
Olson and Boies's goal of securing marriage equality, of course, but they
feared what the conservative Roberts Court might do. A strong Supreme Court
decision against gay marriage would create a precedent that would take
decades to undo. With our society moving generally in the direction of more
tolerance for gays and lesbians, activists wanted to wait a few more years
before bringing a case to the high court.
But gay rights activists may have been too pessimistic about the current
Supreme Court. It's true that the Roberts Court is conservative and that
several Justices are unlikely to be open-minded about same-sex marriage,
including the four most right-leaning Justices: Antonin Scalia, John Roberts
, Clarence Thomas, and Samuel Alito. On the other side of the bench, there
are four Justices likely to be favorable to Olson and Boies's argument that
the denial of marriage rights to same-sex couples violates the Constitution:
Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan (
assuming she is confirmed).
As usual in the Supreme Court these days, the swing vote belongs to Anthony
Kennedy. And there are several reasons to believe that Kennedy, though
conservative on many issues, will vote with the liberals on this one. The
Supreme Court has issued two major decisions dealing with gay rights over
the past 15 years. Both decisions came out strongly in favor of gay rights -
- and both were written by Justice Kennedy.
In one of those decisions, Lawrence v. Texas, which held that bans on
consensual sexual activity among same-sex partners were unconstitutional,
Kennedy wrote that "our laws and tradition afford constitutional protection
to personal decisions relating to marriage" and other "family relationships.
" "These matters, involving the most intimate and personal choices a person
may make in a lifetime, choices central to personal dignity and autonomy,
are central to the liberty protected by" the Constitution. "Persons in a
homosexual relationship may seek autonomy for these purposes," Kennedy wrote
, "just as heterosexual persons do."
These words suggest Justice Kennedy believes that gays and lesbians should
have the same rights and privileges as heterosexuals. Of course, no right
that heterosexuals enjoy is denied more often to gays and lesbians than
marriage.
Justice Kennedy is also known to be the Supreme Court Justice most likely to
vote in favor of expansive interpretations of individual rights. He's a
libertarian, which means he almost always sides with the individual against
the government. This has led him to vote in ways that liberals love and
conservatives hate -- such as his vote to affirm Roe v. Wade -- and vice-
versa -- such as his vote against government regulation of corporate speech.
But it bodes well for the liberals in the same-sex marriage case.
Of course, no one can really predict what the Supreme Court will do. The
same-sex marriage case will take years to reach the high court and, in the
meantime, there may be turnover among the Justices. But so long as the
question of marriage equality turns on Justice Kennedy's vote, Olson and
Boies -- and those in the gay and lesbian community who are depending on
them to win this case -- are in good hands. |
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