By late June 2015, the Supreme Court will decide whether the U.S. Constitution recognizes the right to same-sex marriage. Although same-sex marriage is a true culture war issue, the chances are good that the Court will extend marriage rights to gays and lesbians.

In order to understand what the Supreme Court will do, a crash course in constitutional law is in order. This is because the Constitution says nothing about marriage, and most issues before the Court are sufficiently complex that major rulings require extensive legal analysis, sometimes reaching up to 100 pages after the Justices have filed their concurring and dissenting opinions.

The same-sex marriage issue applies several constitutional theories. First, the Equal Protection Clause of the Fourteenth Amendment. Second, the implied fundamental right to marry, most famously recognized by the Supreme Court in 1967, when it struck down laws prohibiting inter-racial marriage. The undertow is the oft-cited “state’s rights,” allowing states to regulate on matters not specifically set forth in the Constitution.

When the Court resolves an equal protection case, it chooses from three judge-made interpretative models that do not appear in the Constitution but which help the courts apply the vague principles set forth in that document. The model most deferential to the government is “rational basis review.” Under that standard, government policy can distinguish among different classes (rich and poor, for example) so long as it can articulate any rational reason for doing so. Very often, any reason will suffice. This allows the government to pass laws on a variety of matters—including economic policy—without judicial interference unless the laws are irrational on their face and cannot be justified in any way. The government usually wins under the rational basis standard. A less deferential standard of review is “intermediate scrutiny,” most commonly applied when the government discriminates on the basis of gender. Intermediate scrutiny requires the government to articulate an important interest to justify the distinction. The government usually loses under intermediate scrutiny review. The most difficult standard of review for the government is “strict scrutiny,” requiring the government to articulate a compelling reason to justify the discrimination. Racial and national origin discrimination cases apply strict scrutiny, so named because the government closely analyses the government’s reason to ensure that it is truly necessary to justify the discrimination. The government almost always loses under strict scrutiny review.

The Court also recognizes certain “fundamental rights,” including the implied right to marry, not cited in the Constitution. As the Court stated in 1996, “Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as ‘of basic importance in our society, rights sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect’.”

The Windsor Precedent

In all likelihood, the Court will resolve the same-sex marriage case by applying the equal protection and fundamental rights theories. It will also apply a recent case, United States v. Windsor, which in 2013 struck down the Defense of Marriage Act, a federal law that defined marriage in heterosexual terms for purposes of determining when couples receive federal benefits. In Windsor, writing for a 5-4 majority, Justice Anthony Kennedy reviewed the Court’s marriage jurisprudence, noting, “State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, but, subject to those guarantees, regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.” That sentence shows the dilemma for the Supreme Court in the same-sex marriage case. While marriage regulations must satisfy constitutional standards, marriage is traditionally a creature of the state.

In Windsor, Justice Kennedy noted that, “The Constitution’s guarantee of equality must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot justify disparate treatment of that group. In determining whether a law is motived by an improper animus or purpose, discriminations of an unusual character especially require careful consideration.” Striking down DOMA, the Court concluded, “the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.” The Court in Windsor did not explicitly say that the Constitution recognizes a right to same-sex marriage. But, as of this writing, according to Lambda Legal, “44 rulings in 44 cases from 27 different federal courts that have held the laws of 27 states that barred same-sex couples from marrying or having their marriages recognized to be unconstitutional or that have entered partial or full injunctions against them.” In doing so, these courts have applied Windsor’s reasoning. This turn of events was unimaginable 10 years ago, when state after state passed laws and public referendums that made it illegal for gays and lesbians to marry. A quick change in public attitudes, and the Supreme Court’s progressive reasoning in Windsor led to this sea change.

The Competing Arguments

Recent federal cases highlight the way judges have resolved this issue. Some judges hold that same-sex marriage bans cannot survive strict scrutiny under the Equal Protection Clause because marriage is a fundamental right that cannot be restricted without a compelling interest. Other judges apply the more deferential standard of review—rational basis—in deciding that, even if same-sex marriage does not trigger the compelling interest test, the government cannot articulate any rational basis for the same-sex marriage prohibition.

In the case that the Supreme Court has agreed to hear, DeBoer v. Snyder, Judge Jeffrey Sutton of the Sixth Circuit Court of Appeals in Cincinnati in November 2014 bucked the trend in writing the first appellate ruling against same-sex marriage. Judge Sutton, appointed to the bench by President George W. Bush, adopted the “responsible procreation” rationale that stands as the most serious justification in favor of the same-sex marriage bans. Judge Sutton concluded that the government can favor heterosexual marriages over gay and lesbian marriages because it needs to encourage responsible procreation. The Court stated, “[O]ne can well appreciate why the citizenry would think that a reasonable first concern of any society is the need to regulate male-female relationships and the unique procreative possibilities of them.” One way to pursue this objective is to encourage couples to enter lasting relationships through subsidies and other benefits and to discourage them from ending such relationships through these and other means. People may not need the government’s encouragement to have sex. And they may not need the government’s encouragement to propagate the species. But they may well need the government’s encouragement to create and maintain stable relationships within which children may flourish. It is not society’s laws or for that matter any one religion’s laws, but nature’s laws (that men and women complement each other biologically), that created the policy imperative. And governments typically are not second-guessed under the Const- itution for prioritizing how they tackle such issues.”

Judge Sutton is a prominent conservative who had previously clerked for two Supreme Court Justices and argued 12 cases in that Court. But his opinion in the same-sex marriage case was an outlier. Nearly every federal judge to decide the issue since the Supreme Court decided Windsor has struck down same-sex marriage bans, perhaps most notably, Richard Posner of the Seventh Circuit Court of Appeals in Chicago, who took an axe to the conservative arguments in favor of the marriage bans in September 2014. Judge Posner examined the common argument that, in the interests of prohibiting same-sex marriage, the government can choose instead to encourage responsible procreation among heterosexual couples to ensure that their children are raised in stable husband-wife households.

A well-known conservative and Reagan appointee, Judge Posner is known for his colorful writing that often eschews legalese. Summarizing the State of Indiana’s position in the case, Judge Posner wrote: “The sole reason for Indiana’s marriage law, the state’s argument continues, is to try to channel unintentionally procreative sex into a legal regime in which the biological father is required to assume parental responsibility. The state recognizes that some or even many homosexuals want to enter into same-sex marriages, but points out that many people want to enter into relations that government refuses to enforce or protect (friendship being a notable example).

Government has no interest in recognizing and protecting same-sex marriage, Indiana argues, because homo- sexual sex cannot result in unintended births.” Judge Posner lampooned Indiana’s position. He noted that “encouraging marriage is less about forcing fathers to take responsibility for their unintended children…than about enhancing child welfare by encouraging parents to commit to a stable relationship in which they will be raising the child together.” In addition, “if channeling procreative sex into marriage were the only reason that Indiana recognizes marriage, the state would not allow an infertile person to marry. Indeed it would make marriage licenses expire when one of the spouses (fertile upon marriage) became infertile because of age or disease.”

In response, the state offered a series of unpersuasive reasons in favor of heterosexual marriages, including the argument that “in the case of most infertile heterosexual couples, only one spouse is infertile, and … if these couples were forbidden to marry there would be a risk of the fertile spouse’s seeking a fertile person of the other sex to breed with and the result would be ‘multiple relationships that might yield unintentional babies.’” This argument puzzled Judge Posner, who wrote, “True, though the fertile member of an infertile couple might decide instead to produce a child for the couple by surrogacy or (if the fertile member is the woman) a sperm bank, or to adopt, or to divorce.

But what is most unlikely is that the fertile member, though desiring a biological child, would have procreative sex with another person and then abandon the child—which is the state’s professed fear.” Further mocking Indiana’s reasons for prohibiting same-sex marriages, Judge Posner recounted an exchange during oral argument. You simply do not see judicial reasoning like this every day: “At oral argument the state’s lawyer was asked whether ‘Indiana’s law is about successfully raising children,’ and since ‘you agree same-sex couples can successfully raise children, why shouldn’t the ban be lifted as to them?’ The lawyer answered that ‘the assumption is that with opposite-sex couples there is very little thought given during the sexual act, sometimes, to whether babies may be a consequence.’ In other words, Indiana’s government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of governmental encouragement of marriage through a combination of sticks and carrots) to marry, but that gay couples, unable as they are to produce children wanted or unwanted, are model parents—model citizens really—so have no need for marriage. Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.”

In the same case, Judge Posner also tore apart the State of Wisconsin’s justifications for the same-sex marriage ban. The state argued, among other things, that “limiting marriage to heterosexuals is traditional and tradition is a valid basis for limiting legal rights.” But that argument ignores the Supreme Court’s 1967 ruling in Loving v. Virginia against longstanding laws prohibiting interracial marriage.

Again spicing up his legal reasoning, Judge Posner wrote: “Wisconsin points out that many venerable customs appear to rest on nothing more than tradition—one might even say on mindless tradition. Why do men wear ties? Why do people shake hands (thus spreading germs) or give a peck on the cheek (ditto) when greeting a friend? Why does the President at Thanksgiving spare a brace of turkeys (two out of the more than 40 million turkeys killed for Thanksgiving dinners) from the butcher’s knife? But these traditions, while to the fastidious they may seem silly, are at least harmless. If no social benefit is conferred by a tradition and it is written into law and it discriminates against a number of people and does them harm beyond just offending them, it is not just a harmless anachronism; it is a violation of the equal protection clause, as in Loving [v. Virginia].”

How Will The Supreme Court Rule?

In the case that the Supreme Court will hear this Spring, the State of Michigan set forth its legal position in its petition asking the Court to hear the case. Although the Court has held that marriage is a fundamental right that cannot be prohibited without a compelling reason, the state argued that, unlike heterosexual marriage, same-sex marriage is not “deeply rooted in our nation’s history.” The state also argued that “marriage is an issue that is left to voters at the state level.” In addition, “The definition of marriage that has existed for centuries is not irrational or based on animus.” The state added that “It is rational to promote marriage in the setting where children biologically come from—the union of a man and a woman.” And, echoing a concern raised by conservative Justice Samuel Alito in his dissent in Windsor, the voters are entitled to move slowly on this issue before they gain a full understanding of the “long-term impact” of same-sex marriage.

Public opinion polls now favor legalizing same-sex marriage. While Supreme Court Justices say these polls do not govern how they decide cases, the Court is aware of the trend favoring such unions. At least some of the Justices must be wary of falling on the wrong side of history. If more and more Americans are now in favor of same-sex marriage, and if the next generation of Americans continue that trend, how would an anti gay marriage Court be viewed 50 years from now? And if many gays and lesbians have taken advantage of their right to marry, what would happen to their unions if the Court says the states may prohibit them?

These are important questions, but the odds are good that the Court will give same-sex marriages its stamp of approval. The Court is divided between five conservatives and four liberals. It would surprise Court-watchers if any of the Democratic appointees—Justices Breyer, Ginsburg, Sotomayor or Kagan—voted with the conservatives on this issue. If their prior votes on gay rights are any indication, we can also be fairly sure that at least two conservatives, Justices Scalia and Thomas, will not side with marriage equality. In 2003, Justice Scalia in particular used vehement language against a constitutional right to gay sexual practices, and in his dissent in that case, Lawrence v. Texas, he predicted that the majority ruling in that case would lead to a constitutional right to same-sex marriage.

The conservatives on the Court are not expected to vote together in the upcoming marriage case. Justice Kennedy, a Reagan appointee who reliably votes with the conservatives on most issues, is also responsible for the expansive gay rights decisions on the Court over the last 20 years. In 1996, he wrote the majority decision that struck down the State of Colorado’s constitutional amendment against expanding civil rights to gays and lesbians. In 2003, he wrote the decision holding that states could not prohibit sodomy, overturning a Supreme Court ruling from 1987. And in 2013, Justice Kennedy wrote the majority decision in Windsor, striking down the Defense of Marriage Act. If he sides with the conservatives in the same-sex marriage case, Justice Kennedy will have to jump through hoops in distinguishing his prior gay rights cases.

 

Stephen Bergstein is a civil rights lawyer in upstate New York.