My Prediction: What the Court Is About to Do on Same-Sex Marriage


If you read me at all, you know I rarely prognosticate about Supreme Court decisions. First, the justices and their staff members are exceedingly good at keeping confidentiality and leaks virtually never happen. Second, in a technical sense, the justices can change their decisions at any point up to the day the opinions are announced from the bench—and, in an even more technical sense—afterwards, until those opinions are formally published in the federal record. So, predicting the outcome of any case is fraught with problems and is risky. Keep in mind, too, that I’m not a lawyer or legal scholar, but I have been observing cases closely at the High Court for over 20 years, and I’ve even been through my own in Schenck v. Pro-Choice Network. Notwithstanding all the caveats, I’m prepared to make my prediction on the impending same-sex marriage cases.

Before I announce my prediction, though, I’ll bring you up to date. First, you need to know the decision has already been made, for all intent and purposes. That happened on May 1, the Friday following the oral arguments by lawyers in front of the justices. After each of the justices and their clerks had read hundreds of pages of legal briefs, and after they listened to the presentations by lawyers from each side, grilling them with tough questions, the nine “Supremes,” as I affectionately call them, met privately to vote, without staff or security in their justices-only conference room. Then, either the Chief Justice, if he is in the majority, or, if he is not, the most senior justice among the majority, assigned the writing of the opinions, which they have all been doing since. The case is expected to be announced within the next few weeks, but likely not until the last week of June, when the Court will adjourn for the summer.

Now, to the heart of the matter: What I expect the Supreme Court will do with the question of same-sex marriage. To cut to the chase: They will make it the law of the land. That is, a majority of the justices (I am putting the number at 6-3) will order states to issue marriage licenses to couples of the same sex. But wait, NOT for the reason you might think.

What advocates of same-sex marriage want is the finding of a fundamental “right” to marriage for any two persons, same-sex or opposite sex. That would mean a constitutional right, which would result in three things: 1) The highest level of legal protection and the least amount of restrictions surrounding marriage; 2) The seizure of marriage regulation by the federal government, taking it away from the jurisdiction of the states; and, 3) The uncertain legal status of clergy who decline to solemnize same-sex marriages based on religious belief. (Due to the fact that in most states, clergy must be authorized, or even sworn-in, at some level of government—county court, county clerk, etc.—in order to legally solemnize, or legalize, a marriage. Such an authorization includes, implicitly or explicitly, promising to uphold the Constitutions of the respective state and United States. If same-sex marriage were found to be in the constitutions, government-authorized clergy would be forced to facilitate same-sex marriages or relinquish their legal ability to marry anyone.)

Before you panic, let me say these outcomes are highly unlikely. My prediction is that the majority will NOT find such a fundamental constitutional right to marriage. Instead, I see the court taking a different—and safer—route to get to universal same-sex marriage. Based on comments I heard from Justices Kennedy, Scalia, Breyer, and, most importantly, Chief Justice Roberts, as well as the people I have talked to behind the scenes, I see the Court basing its decision on another finding: sex discrimination. In other words, the majority will find that any law that says to a man, because you are male, you may only marry a female, and vice versa, telling a woman that because she is female, she may only marry a male, is patent sex discrimination. Such a finding will result in a federal order for the states to stop discriminating against marriage license applicants based on their sex, but it will not find a universal right to marriage, opposite-sex, same-sex, or anything else. While such a finding results in the national recognition of same-sex marriages, it keeps the adjudication of marriage in the states and away from the federal government, while it protects the First Amendment rights of clergy, based on religious freedom, to decline to marry a same-sex couple based on religious conviction. (It may also preclude claims to such a right by other marriage groups, i.e., plural marriage and human-animal marriage advocates, etc.)

I’m sure that, before this case even arrived at the Court, there was already a 5-4 majority for same-sex marriage (Ginzburg, Breyer, Sotomayor, Kagan—and, yes, Kennedy), so, it was a fait accompli. Here’s how my imaginative scenario goes: Chief Justice Roberts went to Justice Kennedy and said, “Tony, you can have your weak 5-4 majority that puts most religious groups in an enormous crisis and invites endless litigation that must inevitably come here, or, you can have a 6-3 strong mandate with me. Caveat: The 6-3 will be on the basis of sex discrimination, and, if that’s your position, you’ll write the opinion. You got this started ten years ago in Lawrence, and you can finish it now with Obergefell.”

On the last point, there’s another possible twist: Again, if the Chief joins the majority, he gets to say who writes the opinion—either himself, or whatever member of the majority he selects. Maybe the Chief wants to control the language of the decision. If so, he’ll write it. In either case (and here’s where I’ll take a great risk of being pilloried by my conservative cohorts) John Roberts saves the day for religious leaders across this country. If my presumed 5-4 majority gets it, there’s no protection for religious freedom or right of conscience. If my predicted 6-3 gets it, there is—because of John Roberts.

Whether you like it or not, my predicted outcome would be a Solomonic solution to a very natty problem. I’m convinced the Court was going to establish universal same-sex marriage one way or the other. If I’m right in my hunch, the outcome won’t be the worst of the possibilities. And, if I’m right, clerics like me will have John Roberts to thank for preserving our religious freedom.

Now my final caveat: I’m neither a prophet, nor the son of prophet (Amos 7:14). In other words, I could be completely wrong.