Two months ago the United States Supreme Court heard arguments pro and con same sex marriage. They will make their decision in June.
Speculation that their decision may be affected by recent decisions in three U.S. states and three countries is widespread.
The center of interest is Justice Anthony Kennedy. It is never unusual for him to be the deciding vote in the politically divided Court.
Twelve states have passed legislation approving same-sex marriage. Connecticut, Iowa, Maine, Maryland, Massachusetts,New Hampshire, New York, Vermont, Washington, and the District of Colombia had previously made instituted bills. In the last two months, Delaware, Rhode Island and Missouri followed their lead. At the present time Illinois, which approved civil unions two years ago, is nearing a final vote on the issue.
Justice Kennedy has displayed a tendency to include ‘changing practices’ in his decisions. He previously voted with “trends” on gay rights and death penalty issues.
It is always possible that Justice Kennedy is reading the newspapers and is impressed with the progress,” said Michael Klarman, a Harvard University law professor and author of a recent book on the gay marriage fight.
The decisions on these two cases are expected by late June. The “Defense of Marriage Act” has a clause that stipulates ‘marriage can only be between a man and a woman’. Arguments that the bill is Unconstitutional point out that this provision discriminates against gays in the work force. It disallows them the same rights as heterosexual men and women. The other is California’s Proposition 8, which forbids same sex marriage. At the time it was passed, attitudes in the African-American and Hispanic communities were crucial in its passage. Recent polls prove that if the vote were taken today, it would not receive an affirmative result. In addition, a lower court previously struck down Proposition 8, and most think it is unlikely that the Supreme Court will overturn the appeals court decision.
Kennedy is the “wild card”. In 1992, he was assigned the task of writing an opinion, and in the middle changed his vote for the opposition.
There is little doubt how Justices Scalia, Alito and Thomas will vote. They are hard line right wingers. Chief Justice John Roberts is unreadable. On the opposite side Justices Kagan, and Sotomayor are certain to vote in favor of the LGBT community.
The Court’s decision could take several different paths. In the case of California’s Proposition 8, it could rule on it either way, or do nothing. If they choose not to take action, the ruling of the appeals court would stand, and the measure would be reversed.
The trickier issue is the Defense of Marriage Act. It affects equal treatment under the law, which is a substantive Constitutional issue.
The Court may make decisions about specifics of each case, but may not add their stamp of approval to same-sex marriage. It is a possibility that they will offer a decision stating that the measure is a state’s rights issue. Marriage is a civil union, and there is no stipulation in the Constitution which they can use to make such a decision.
Whatever the outcome, history will be made in June.
The Guardian Express