As the oral argument in the same-sex marriage cases nears, the smart money remains on a 5-4 decision upholding the right of individuals to be married in their own states and to have those marriages recognized by other states.
In fact, under the surface, a lot of the briefing seems to be less about whether the Court will affirm marriage equality and more about how. If history is a guide, the Court will speak in oblique, even oracular terms. A strong, clear opinion would serve the nation better.
Whatever the Court decides, religious and social conservatives plainly still hope to blunt the gay-rights movement. The Alabama Supreme Court has already ordered same-sex marriages halted, despite a federal court decision that the state’s ban is unconstitutional. A committee of the Texas House of Representatives recently approved a ban on state funds being used to perform same-sex marriages, court order or no. Legislatures in Texas, Alabama and Michigan considering “conscience clause” bills that would allow state-funded adoption and foster-care agencies to refuse same-sex couples who seek to adopt or foster.
And then there’s Louisiana.
Indiana and Arkansas may have backed down on their bills, but the Louisiana legislature has before it the “Marriage and Conscience Act,” which is explicitly, sweepingly designed to exclude and stigmatize same-sex couples. Under the Act, employers could still deny same-sex spouses marriage benefits; licensed professionals could refuse services to same-sex couples; state contractors could refuse to hire gays and lesbians; and even state officials—such as judges—could refuse official recognition to same-sex marriages.