Starting today, the Supreme Court is hearing two monumental cases relating to same-sex marriage, both at a time when public opinion polls show a growing number of Americans support marriage equality.
A Pew Research Center poll released last week found that 49 percent of Americans support gay marriage and took a deeper look at the reasons why.
The Pew data is most applicable to the case before the Supreme Court determining whether California’s Proposition 8, banning gay marriage in the state, is constitutional. The other case deals with the 1996 Defense of Marriage Act (DOMA), which officially defines marriage as between a man and a woman and denies federal benefits to same-sex partners of government employees. A Gallup poll released on Friday found that, if it were put to a vote, 54 percent of Americans would cast a ballot to allow same-sex partners of federal employees to receive benefits, while only 37 percent would vote to not allow it.
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[B]efore signing on to major changes — abolishing the death penalty for young murderers, for example — [Kennedy] has wanted to feel comfortable that the change was in line with public opinion and the trend in the law.
“Among all the justices, he is most concerned about public opinion,” New York University law professor Barry Friedman said of Kennedy. “The more there is a groundswell of support for gay marriage, the more it is likely he will vote to support it.”
Justice Kennedy’s notoriety as a swing vote is also of a piece with his resistance to being ideologically pigeonholed. He voted against President Obama’s Affordable Care Act (ACA) and wrote the majority opinion in Citizens United, yet in past cases has written in support of gay rights.
But it’s far from a sure thing. Kennedy put gay rights proponents on edge when he expressed concern that the high court was increasingly “the venue for deciding politically charged issues such as gay marriage, health care and immigration,” the San Francisco Chronicle reported. Such hot-button issues, he argued, are for the other branches of government to decide.
“I think it’s a serious problem,” Kennedy said. “A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say,” Kennedy said. “And I think it’s of tremendous importance for our political system to show the rest of the world — and we have to show ourselves first — that democracy works because we can reach agreement on a principle basis.”
If Kennedy decides to leave decisions about same-sex marriage to Congress or the states, another possible deciding swing vote could be Chief Justice John Roberts, a conservative who surprised many with his ruling in favor of the ACA. The Wall Street Journal’s Jess Bravin writes that, as with Affordable Care, Obama and Roberts’ “places in history are entwined again.”
Chief Justice Roberts doubtless knows “that history is going in a certain direction,” even if he isn’t persuaded that the Constitution requires invalidation of laws denying recognition to gay marriages, said Richard Pildes, a law professor at New York University. If that leads him to side against Mr. Obama’s position, it could place the chief justice in “a tragic kind of position—knowing how a decision they believe is correct today is going to look bad 15 years down the road.”
