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 Based on the court's actions during the past two years, a sense of
inevitability is in the air: That a majority is on the verge of
declaring gay marriage legal nationwide.
Justice Anthony Kennedy, the court's pivotal member on gay rights,
has been marching in this direction with opinions dating to 1996. In
his most recent gay rights decision for the court in 2013, rejecting
a legal definition of marriage limited to a man and woman for
purposes of federal benefits, Kennedy deplored that U.S. law for
making gay marriages "unequal."
That 5-4 decision did not address a constitutional right to same-sex
marriage, but lower court judges interpreted the ruling as an
endorsement of it and began invalidating state bans.
When states appealed rulings striking down their same-sex marriage
prohibitions, the Supreme Court declined to intervene, most notably
in October 2014 when it denied appeals in seven cases on a single
day.
Instead, the nine justices are hearing in Tuesday's oral arguments
an appeal of the sole decision from a regional U.S. appeals court
that went the opposite way. Last November, the Cincinnati-based U.S.
Court of Appeals for the 6th Circuit upheld gay marriage bans in
Ohio, Michigan, Kentucky and Tennessee.
With 37 of the 50 states now permitting gay marriage, many because
of judicial orders, it seems unlikely the country's highest court
would reverse course. Public opinion polls over the last decade have
shown large increases in support for gay marriage. A ruling is due
by the end of June.
KEY SWING VOTE
Yet some questions remain.
How much will Kennedy, a member of the court's five-man conservative
bloc who often casts decisive votes in close cases, show his hand in
the 2-1/2 hours of oral arguments? Will he reveal a clear view that
the Constitution gives gay people a right to marry or will he voice
concerns for state interests in controlling marriage laws?
An element of uncertainty hovers over Chief Justice John Roberts,
who broke with the other court conservatives and cast the deciding
vote upholding President Barack Obama's healthcare law in 2012.
Roberts voted against gay rights in the 2013 ruling. But he
separated himself from the most conservative dissenters and declined
to declare outright that states may ban gay marriage.
He has demonstrated apprehension about the reputation of the court
that, by virtue of his service as chief justice, informally bears
his name. In his opinions, he has sometimes tried to lower tensions
in controversial cases and reassure people that the court is
aligning with precedent and public expectations.
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The question is not only how Roberts might vote but what he might
write.
In the 2013 ruling, he denounced the court majority's sentiment that
federal lawmakers were deliberately harming gay people with the
limited definition of marriage. "I would not tar the political
branches with the brush of bigotry," he wrote.
For the other seven justices, expectations are clearer.
The four liberals, Ruth Bader Ginsburg, Stephen Breyer, Sonia
Sotomayor and Elena Kagan, have signaled their opposition to state
same-sex marriage bans. On the other side have been the three most
conservative justices, Antonin Scalia, Clarence Thomas and Samuel
Alito, asserting that nothing in the Constitution guarantees
same-sex marriage.
Two legal questions are before the justices: whether the
Constitution's guarantees of due process and equal protection cover
a right to same-sex marriage; and, if they do not, whether states
that ban same-sex marriages must recognize such unions performed in
other states.
Gay couples and their families, about 30 adults and 20 children,
have appealed the 6th Circuit's decision. The name petitioner is
James Obergefell, who wanted his home state of Ohio, which prohibits
gay marriage, to recognize his Maryland marriage to John Arthur as
Arthur was dying from amyotrophic lateral sclerosis, also known as
Lou Gehrig’s disease.
Officials expect the courtroom to be packed to its 400-seat
capacity. Lines for general spectator seats began forming around 6
a.m. on Friday, more than four days ahead of the scheduled oral
arguments at 10 a.m. (1400 GMT) on Tuesday.
(Reporting by Joan Biskupic; Editing by Howard Goller and Will
Dunham)
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