I have many vices. I have been known to wager a dollar on those poker-hand coffee cups, and to go all in with deuces in the pocket. But I also once drew five aces and still lost; since then, prediction is not one of my bad habits. I’m not going to predict, then, what the Supreme Court will do with the same-sex marriage cases now that it has put them on this year’s docket. But if I were a bookie, I’d make marriage equality an odds-on favorite. It has been less than two years since United States v. Windsor, but it seems like a decade. Court after court has struck down bans on same-sex marriage; the “traditional marriage” camp has begun to seem like the enemy in Sun Tzu’s Art of War—exhausted, bewildered, devoid of hope or spirit. Take the decision under review in today’s grant of cert. The Sixth Circuit upheld the ban. But Judge Jeffrey Sutton’s opinion might generously be called listless. A famously bright and resourceful conservative was unable to muster a single serious argument why marriage equality was actually a bad thing; he was reduced to feebly protesting that it would be better for gay people themselves if they were to gain their rights through politics rather than law.
There’s not much there from which to fashion a last-ditch defense of “one man, one woman.” Prodded by the federal courts, the nation has already decided. For the Court to affirm Sutton’s opinion would seem almost akin to reversing Brown v. Board of Education.
But even if Justice Anthony Kennedy’s vote seems foreordained, he must choose between the rights of gays and lesbians—an issue on which he has fashioned a historic legacy—and the prerogatives of the states, about whose “dignity” and honor he has often rhapsodized. He might be tempted to split the baby by holding for the states on the “celebration” issue but for the challengers on “recognition.” (The Court’s grant of review was careful to split the two questions.) That is, he might say, a state could refuse to perform marriages itself, but could not refuse those legally married out of state the benefits of marriage under state law.
But the temptation will be fleeting because that dog won’t hunt. In Kennedy’s Windsor opinion, he wrote that the federal government’s refusal to recognize legal same-sex marriages “humiliated” not only gay couples but their children. The children of couples who seek legal marriage in-state would be no less humiliated by their parents’ inability to marry than those of couples who married out of state. Once the issue becomes “the children,” we have probably entered the endgame.
That’s still not a prediction. This Court has shown a tremendous capacity to surprise. But if anybody wants to put down money on the states in the new case of Obergefell v. Hodges, please look me up. I will be the guy with the coffee cup and the careful poker face.