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Obergefell v. Hodges - At Last, a Denouement for Marriage Equality?

Obergefell v. Hodges -  At Last, a Denouement for Marriage Equality?

In the end, no one knows what to expect.
The United States Supreme Court heard oral arguments this week on what some consider to be the most enduring—and controversial—civil rights issue of our generation, namely, the right of same-sex couples to marry. The case, known as Obergefell v. Hodges, may have been argued this week, but the issue has been on its way to the Court in one form or another since Baker v. Nelson in 1971, almost 45 years ago.  This issue took on a new context in 1993, when the Hawai’i Supreme Court ruled that the denial of marriage to homosexual couples might violate the sex discrimination provision of that state’s constitution. 
Washington’s reaction to the Hawai’i ruling was swift and emphatic.  Congress passed, and President Clinton signed, the Defense of Marriage Act (DOMA). DOMA established as a matter of federal law that same-sex marriages, valid where celebrated, would not be recognized by the federal government and need not be recognized by the states.  In an opinion by Justice Anthony Kennedy, the Court struck down the federal non-recognition provision of DOMA just two years ago. 
Before the Court now are two questions, one of which potentially swallows the other.  First, under the federal constitution, must the states allow same-sex couples to marry?  Second, even if the states can prohibit the performing of same-sex marriage within their own borders, must they recognize valid same-sex marriages performed in other states?
The arguments the parties present on those questions are by now familiar to most legal observers.  Marriage, the petitioners say, is a fundamental right; one that cannot be denied to same-sex couples by the states without a substantial justification.  Marriage, say the respondent states, is a union of one man and one woman, and allowing same-sex couples to marry amounts to a definitional change with unforeseeable social consequences.  The states, their argument goes, have the right to delay allowing same-sex couples to marry, or to prohibit it completely, because of the biological differences between men and women and the need to protect procreation within marriage. 
As the New York Times observed, at the oral arguments, the Justices mostly “played to type,” with the conservative Justices bedeviling the petitioners and the more liberal Justices giving similar treatment to the respondent states.  Clearly, the only votes up in the air are Justice Kennedy’s and, to the eyes of some, that of the Chief Justice, John Roberts.  All eyes at Tuesday’s argument—and commentators’ tongues this week—were on Justice Kennedy, whose vote will likely determine the outcome. 
There is good reason for optimism.  Besides authoring the 2013 United States v. Windsor decision that struck down DOMA, Justice Kennedy wrote Romer v. Evans (1996), establishing that a state could not prohibit LGBT people from petitioning their government for redress of grievances. Justice Kennedy also authored Lawrence v. Texas (2003), which struck down the laws of 14 states that continued to criminalize LGBT intimacy even in the modern era.  But he is something of a cipher. His support for LGBT positions in cases has been less than complete, and some of his questions yesterday suggested a level of sympathy with those who claim that LGBT people are trying to alter the institution of marriage rather than join it. 
The position of Chief Justice Roberts is perhaps the most opaque and most interesting of all.  Appointed by President George W. Bush, during ten years on the Court Roberts has established himself—as a good Chief should—as more interested in the Court’s dignity and authority than in the particular outcomes of at least some highly controversial cases.  We can all be grateful that President Bush’s likely hopes have been dashed to this extent: John Roberts is only sixty years old and could quite foreseeably serve as Chief for 40 years. 
Why did the Chief vote to uphold Obamacare in 2012’s National Federation v. Sebelius?  In all likelihood, so that he could write the Court’s opinion.  (Without his vote, the duty to assign an author to the five-member majority opinion would have fallen to Justice Kennedy.)  A similar outcome is readily conceivable here.  In the 1953 Term of the Court, when it considered Brown v. Board of Education, then-Chief Justice Earl Warren toiled day and night to write an opinion that all nine Justices could join in striking down laws against racial segregation in the nation’s public schools.  Chief Justice Roberts does not have Chief Justice Warren’s advantage of working with a Court that is likely to value unanimity, but he has made great strides in improving the Court’s cohesiveness.  I look for him to author this opinion, perhaps regardless of the outcome. 
A decision is expected by the end of the Court’s current term in late June of this year.
On May 19, 2014, Oregon Federal District Court Judge Michael J. McShane historically struck down Oregon’s ban on same-sex marriage, ruling that the prohibition violated the federal constitutional rights of gay and lesbian individuals. Read Mark Johnson Roberts’ and John Christianson’s summary of Judge McShane’s ruling HERE.

Written by: Mark Johnson Roberts , Of Counsel, Family Law.