Supreme Court could say yes to same-sex marriages. How will it change America?

U.S. Supreme Court will decide on homosexual marriages.

Questions:

1. Is the outcome that the Supreme Court will say that the gay couples have the constitutional  right to marry the most probable one or maybe not, and why?

2. If the scenario will materialize in which the Supreme Court says clearly yes to gay marriage what it will mean for America in your opinion?

Answers:

Kenneth WaldDistinguished Professor of Political Science, University of Florida

1. When the Supreme Court ruled on United States v. Windsor in 2013, it did not take a definitive position on whether same-sex marriage is constitutionally protected in all cases; it merely struck down the so-called “Defense of Marriage Act” which asserted federal authority over what had been a state matter. Many commentators speculated that the Court was going to see how the lower federal courts would rule on the larger question as an indication of the evolution of public opinion on this issue. Since then, there’s been a virtual avalanche of rulings that found state restrictions on same-sex marriage unconstitutional under the Equal Protection clause of the U.S. Constitution with, as I recall, only a single federal judge ruling otherwise. Given this trend, it’s clear that same-sex marriage has won. The question is whether Justice Anthony Kennedy will join the four other judges who ruled against DOMA again or if this is pushing him too far from his comfort zone. The Court MIGHT rule broadly, as they did decades ago in the Loving case about inter-racial marriage, or they might rule narrowly and prolong the battle. It could go either way.

The opponents of same-sex marriage are trying an unusual (and in my view intellectually dishonest) end run that would allow individuals who have religious objections to same-sex marriage to refuse to provide services for gay marriages—bakers, florists, halls, etc. That decision, whether there’s an individual right to discriminate in providing public services based on religious grounds, would be several years down the road. (Clergy are already legally protected from having to perform weddings that they cannot accept religiously but that doesn’t apply to ordinary people providing public services.)

2. In my judgment, a broad ruling would have very little impact because the bulk of the American people have made up their mind. Just as there was uprising when the Court struck down criminalization of gay sex and upheld gay rights legislation, most people now recognize this as basic justice and will accept the decision gracefully. There are still some county court clerks, the people who actually issue marriage licenses, who will find a way to harass applicants but they will probably comply once the legal services attorneys threaten to sue them.

It’s hard for someone my age, who grew up when homosexuality was a filthy secret and racism was normal, to comprehend that I now live in a country which enables gays to live openly and enjoy the full protection of the law and which has now twice elected a black man to the presidency. As somebody who came of age during the Vietnam War, these subsequent developments have given me more pride in my country. Scratch most Americans and I think you’d find the same sentiment.

Jonathan Goldberg-HillerAssociate Professor, Department of Political Science, University of Hawaii at Manoa

1. The probably outcome is that the Supreme Court will agree that same-sex marriage is a constitutionally protected right. Ever since the abortion decision in 1974, he Court rarely has embraced new rights without a number of states first acknowledging these rights either explicitly or by ignoring restrictive laws that they have passed. Today 36 states give licenses for same sex marriages. It is true that many of these states are doing so because judges have embraced the idea that there is an issue of equal protection at stake; this is different than legislatures of these states embracing SSM, which 12 states have done. The other 24, then, have sometimes reluctantly embraced the right. Nonetheless, there are marriages now in these states; it is therefore a right in practice, and the court may recognize that this indicates a sea change in attitudes. This is often more explicitly persuasive to the Court than studies of public opinion, though it is clear that the Court most often follows public opinion, rather than lead it. Recent precedents on the court, particularly the Windsor ruling that the federal government cannot refuse to recognize same sex marriages (which had been the law of the land since 1996) suggest that it is harder for states to claim that they can restrict marriages to one man and one woman. A majority on the Court is likely to argue that banning same sex marriage has no rational basis and is purely an act of animus against homosexuals. The Court will be deciding two separate issues: whether the bans are constitutional in the remaining 14 states (and other states under judicial mandate to stop discriminating), and whether states need to recognize same sex marriages enacted in other states. The latter issue will be moot if there is a declared right to same sex marriage as a principle of liberty or a principle of equality (two different possibilities under the 14th Amendment to the Constitution which binds the states to the federal constitution).

2. The impact will be subtle. Public opinion in the US now favors SSM, and at the same time sees the issue as less contentious than it was. This is really the main impact. 2004 was probably the banner year for the Republicans using opposition to same-sex marriage as a means to motivate their voters. Since then, it has been a less successful technique. This is also a consequence of a demographic shift. Opposition to SSM is much higher among older voters than young voters who no longer experience the same cultural problems regarding diverse sexualities than their parents did. This is a common phenomenon in Western societies; similar cultural dynamics are at play in Europe where Courts play a much smaller role in political life than in the US.

Ken Sherrill, Professor Emeritus, Department of Political Science, Hunter College , CUNY

1. At this point, a Supreme Court decision for marriage equality is the most probable outcome. As of now, marriage equality is the law in most of the states and for a majority of the population. Further, most Americans support it. The Court is not likely to reverse it now.

2. The Court decision will legitimize the progress that LGBT people have been making in the US and the issue will become less and less controversial. We already see Republicans moving away from talking about the issue. The strange thing is that after generations of conflict, the issue is largely settled.

Clyde WilcoxProfessor, Department of Government, Georgetown University

1. It is not clear how the Court will rule, but my guess is that since they let this go last time and so many people have gotten married as a consequence, and since a majority of Americans now favor marriage equality, they will rule that states must allow marriage.

2. If they do not, they will not prohibit same sex marriage, so some states would move to reverse their court orders but others would not.

 

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