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How the Supreme Court will rule on gay marriage: A prediction
One opinion from John Roberts. One opinion from Anthony Kennedy. And crucial questions left unanswered
 
A sign depicting Justice Anthony Kennedy is held outside the Supreme Court on March 27.
A sign depicting Justice Anthony Kennedy is held outside the Supreme Court on March 27. Chip Somodevilla/Getty Images

It's always a dangerous task predicting the outcome of a Supreme Court case. But in the spirit of March Madness — why not? Below, find out how the Supreme Court will decide its gay marriage cases, before the justices even write the opinions:

Hollingsworth v. Perry (the Prop 8 case): 
Chief Justice John Roberts, joined by the four liberal members of the court, will dismiss the case. Specifically, the Chief Justice will rule that the proponents of Proposition 8 do not have standing to challenge the District Court's ruling, because the decision allowing gay marriage did not cause them an "injury in fact."

Indeed, throughout Tuesday's oral arguments, the Chief Justice appeared almost uninterested in what the lawyers had to say about the constitutionality of Proposition 8, a popular referendum that banned gay marriage in California. Not only did the Chief Justice force the lawyers from both sides to begin with the standing issue, he also forced the government to give it's view of standing despite the fact that, well, it didn't have one. But not even that was enough to divert the Chief's focus, and sure enough, Solicitor General Donald Verrilli did as he was instructed and more or less made up the government's position on the fly.

Virtually everyone else, including the Chief Justice's fellow conservatives, appeared uninterested in Roberts' desire to toss the case on procedural grounds. Both Justice Anthony Kennedy and Justice Samuel Alito openly expressed concerns that refusing to grant standing would create a state of affairs whereby a state executive branch could override ballot initiatives they disagree with by refusing to defend them in court. The other justices, both liberal and conservative, appeared eager to tackle the merits (mind you, Justice Clarence Thomas did not speak, but history suggests he is not one to dodge tough questions on procedural grounds).

Which brings us, inevitably, to Justice Kennedy. As the author of Lawrence v. Texas (which struck down state laws banning sodomy), and a lover of the spotlight, would he not be primed to join the liberal justices and vindicate the rights of gay Americans once more? No, probably not. Contrary to popular belief, Justice Kennedy is not a "moderate." Rather, as Jeff Toobin once put it, Kennedy is better described as an "extremist of varied enthusiasms." One of his enthusiasms is federalism, or the right of the states to govern. While Kennedy did author Lawrence, his comments at Wednesday's oral arguments make clear that he believes that federalism concerns are very much wrapped up in the marriage equality debate. As such, he is unlikely to side with the liberals and strike down Prop 8 as a violation of the Fourteenth Amendment.

With Kennedy on team federalism (read: team conservative), that leaves the court divided on the merits, with one vote, Roberts, in the middle. Roberts probably is inclined to agree with the federalists, but he is too shrewd a practitioner of the art of the law to thrust the court into a political thicket like gay marriage, particularly when he can steer the court clear of the thicket altogether. As such, expect him to write the majority opinion joined by four very unenthusiastic liberals, who will write concurring opinions decrying the fact that the court did not strike down Prop 8 as unconstitutional.

In response, expect a feisty Scalia dissent and a short Thomas dissent.

United States v. Windsor (the Defense of Marriage Act case):
The Defense of Marriage Act is going down.

The case before the court also involves standing issues, but the Chief Justice, once again, is the only one who appears to really care about them. This will not matter though, since this time Kennedy will be joining the four liberals to author the opinion. As previously mentioned, Kennedy is a federalism fanatic, and, true to form, he devoted most of his questions at oral arguments to quibbling with the idea that the federal government has any authority to legislate on the issue of marriage at all.

Basically, Kennedy believes that marriage is a state concern. As such, his "majority" will strike down DOMA on federalism grounds. This will please no one, however, because it will mean that the court will not answer the question that almost everyone else on the bench, liberal and conservative, appear to wish to answer (albeit in different ways): Does DOMA violate the Fifth Amendment's guarantee of equal protection?

But the liberals will take what they can get: They will concur in judgment, agreeing that DOMA should be struck down. But they will write their own opinions expressing their belief that the law is unconstitutional.

And in my "upset" prediction, I believe Chief Justice Roberts will join Justice Kennedy's majority — with the caveat that he believes the case lacks standing.

What it means for marriage equality:
Gays will be allowed to marry in California, and DOMA will fall — both good for gay rights. But these victories will come for reasons wholly separate from the core question of whether the Fifth and Fourteenth Amendments of the Constitution protect a right for gay couples to marry. In other words, we will be right back where we started.

However, it should be said that these cases focused a great deal of attention on the issue of gay rights and marriage equality. That focus has lead to a surge in support from people on the left who have remained quiet. It has also demonstrated that attitudes towards marriage equality are changing on the right. That spotlight will serve the equality movement well going forward, demonstrating to people on the fence that supporting equality is very much a mainstream thing to do these days.

 
Jeb Golinkin is a graduate of the University of Texas School of Law and writes about U.S. politics and policy for TheWeek.com. From 2008 to 2011, he served as an editor and reporter for Frum Forum/New Majority. Email him at jgolinkin@gmail.com.

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