The Supreme Court’s decision to hear two landmark gay marriage cases is being billed as a make-or-break proposition. Why would the Court have agreed to review California’s decision to restore marriage equality in the state, the argument goes, unless some of the conservative justices were inclined to reverse that decision? Conversely, supporters of marriage equality hope that the Court will use both decisions to accept the Obama administration’s argument that gays and lesbians are entitled to “heightened judicial scrutiny,” which means that laws discriminating against them are presumptively unconstitutional—and that, as a result, the Court will recognize a federal constitutional right to marry whomever you please.
In fact, neither of these broad outcomes seems likely. If you assume that Anthony Kennedy is the swing vote (that is, that all four of the other conservative justices vote against gay marriage), a more probable outcome is that Kennedy, joined by the four liberal justices, will decide both cases using the relatively narrow approach to gay rights that he has consistently applied to strike down laws that discriminate against gays and lesbians. Sidestepping the controversial question of whether all laws discriminating against gays and lesbians are presumptively unconstitutional, the Supreme Court may well hold that even under relatively deferential judicial scrutiny, California’s Proposition 8 and the federal Defense of Marriage Act can’t be justified.
In the California case, the Court seems likely to uphold the Ninth Circuit’s decision that California, having granted the right to gay marry, can’t take it away without expressing unconstitutional animus towards gays and lesbians. And in the Defense of Marriage Act case, the Court seems likely to strike down the federal definition of marriage as between a man and a woman on the grounds that Congress’ reasons for defending the law don’t satisfy even a deferential form of judicial scrutiny. Neither decision would create a national right to gay marriage, but both would encourage state legislatures and courts to continue to recognize gay marriage on their own.
In this sense, with the DOMA case, the Court may well reject the broad reasoning of the U.S. Court of Appeals for the Second Circuit in Windsor v. U.S. [pdf], which is the case the Court agreed to review. The appeals court accepted the Obama administration’s unexpected argument that laws discriminating against gays and lesbians should be subject to heightened judicial scrutiny. But, as the dissenting judge in the Windsor case pointed out, the Second Circuit was the first circuit court to accept this argument: Both the Supreme Court and eleven other circuit courts reached the opposite conclusion and refused to apply heightened scrutiny to gays and lesbians. For this reason, Justice Kennedy seems more likely to be persuaded by the argument sketched by Judge Michael Boudin in Massachusetts v. Department of Health and Human Services, a DOMA case decided [pdf] by the U.S. Court of Appeals for the First Circuit last May. Boudin reviewed each of the four arguments that Congress offered to justify DOMA: “1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic self-governance; and (4) scarce government resources.” And, citing Justice Kennedy’s opinions in Lawrence v. Texas and Romer v. Evans, he held that none of these reasons could satisfy even relatively deferential judicial scrutiny, because the desire to maintain tradition cannot justify a law that harms minority groups and intrudes on traditional state concerns. It’s hard to think of an argument more likely to appeal to Justice Kennedy, since it combines two of his favorite concerns—states’ rights, and avoiding dignitary insults to gays and lesbians that are based on “mere animus” or “moral disapproval.” The Court decided not to review Boudin’s opinion in the Massachusetts case, perhaps because Justice Elena Kagan had worked on the case as Solicitor General and would have had to recuse herself—an outcome that neither the liberal nor the conservative justices must have viewed as fair. But even though the Court isn’t reviewing Boudin’s opinion, that doesn’t mean it can’t adopt his narrow and persuasive reasoning.
As for the California case, Judge Stephen Reinhardt’s opinion [pdf] striking down Proposition 8 also was written narrowly, in an effort to win Justice Kennedy’s vote. (In fact, it reads like what has become known to the Supreme Court bar as a Kennedy brief—a brief that repeatedly cites Kennedy in an effort to flatter him.) Like Boudin, Reinhardt cites the Romer case, this time to argue that the state, having granted a right to gays and lesbians, may not take the right back without a legitimate reason—and preserving tradition for its own sake isn’t, as Kennedy has stressed, a legitimate reason. Having insisted that his previous decisions didn’t imply a federal constitutional right to gay marriage in every state in the nation, Kennedy may well be inclined to strike down Proposition 8 on similar grounds. That would mean that gay people in California could continue to marry, but those in the majority of states that deny marriage equality would have to continue to make their case in state legislatures or lower courts.
It’s possible, of course, that Kennedy will prefer a broad opinion to a narrow one. In the most hotly contested previous cases, he has voted with the conservatives to strike down laws on the most sweeping possible grounds—such as his holding in the Citizens United case that corporations are persons, and his vote to strike the Affordable Care Act as a violation of Congress’s power to regulate interstate commerce. But Justice Kennedy is also deeply attached to the previous jurisprudence of … Justice Kennedy. Because his earlier cases give him and the liberals an easy way to strike down the Defense of Marriage Act and California’s Proposition 8 without resolving the status of gay marriage across the nation, there’s no reason to expect he won’t at least go that far. If Kennedy does write a narrow opinion, it’s not beyond the realm of possibility that he could attract a vote like that of Chief Justice John Roberts, who might not want to be on the wrong side of history. Moreover, regardless of what Roberts thinks of Kennedy’s opinions in Romer and Lawrence, they’ve been on the books for years and it’s impossible to uphold DOMA or Prop 8 without also overturning Kennedy’s holding that preserving tradition for its own sake isn’t a permissible basis for laws that discriminate against gays and lesbians. But are Kennedy and the liberals ready to take the next step, with a broad opinion nationalizing the right to gay marriage? It’s all speculation until the Court’s likely decision in June.
Jeffrey Rosen is legal affairs editor at The New Republic and president and CEO of the National Constitution Center.