On April 28, 2015, the U.S. Supreme Court heard oral argument on the legal challenges to bans on marriage rights for same-sex couples in Obergefell v. Hodges. Specifically, the Court was tasked with addressing two questions: ( 1 ) whether states must perform same-sex marriages; and ( 2 ) whether states must recognize same-sex marriages performed in another state where such marriages are legal.
The Supreme Court is comprised of nine Justices. The "liberal bloc" of the Supreme Court consists of Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor, Justice Elena Kagan, and Justice Stephen Breyer. All indications suggest that they will rule in favor of marriage equality. The clear conservatives on the bench include Justice Antonin Scalia, Justice Samuel Alito, and Justice Clarence Thomas. There is little doubt that they will side against marriage equality. The remaining two Justices—Chief Justice John Roberts and Justice Anthony Kennedy—provide the ambiguity.
Justice Roberts is one of the more conservative Justices on the bench and has a record of casting votes in favor of conservative outcomes far more often than not. However, in in recent years, he has voted consistent with the Court's liberal bloc on several occasions. Some legal scholars believe he may vote in favor marriage equality. That said, many believe that if he does rule in favor of marriage equality, he will choose to write the opinion that will accompany the ruling and he will likely write it in a narrow way, limiting the opinion's applicability to marriage rights only ( without leaving any room for the opinion to be applied to extend further rights to LGBT individuals and families ).
However, same-sex couples do not need Justice Roberts' vote to achieve victory. Even if Justice Roberts votes against marriage equality, the tie-breaker will belong to the infamous "swing-vote" on the bench—Justice Kennedy. In the past, Justice Kennedy has voted in favor of gay rights. He voted in favor of striking down "laws against sodomy" in Lawrence v. Texas and just less than two-years ago in U.S. v. Windsor, he voted in favor of striking down the section of the federal "Defense of Marriage Act" law that defined marriage as between a man and woman only.
Thus, even without Justice Roberts' vote, if Justice Kennedy follows his prior pattern of analysis, the Supreme Court should issue a national mandate for marriage equality with a 5-4 decision. Both Justice Roberts and Justice Kennedy asked tough questions to both sides during oral argument, not giving any clear indication as to which way they will decide. While the ultimate decision is still up in the air, we do know that there are a few outcomes.
First, marriage equality could lose 5-4 if both Justice Roberts and Justice Kennedy side against same-sex couples. Most legal scholars believe that such a decision is unlikely, but possible. If that were the case, same-sex marriage would still be legal in the states that currently allow it. However, the remaining states would be permitted to continue to ban and/or refuse to recognize same-sex marriage.
Second, the Court could rule narrowly, answering no to the first question but yes to the second question. In other words, the Court may find that states do not have the obligation to perform same-sex marriages but that they must recognize same-sex marriages conducted in other states, though it is difficult to imagine how the Court could conceive of a legal distinction between the two. Nonetheless, if the Court feels unready to hand down a broad, sweeping decision that would make same-sex marriage the law of the land, this option provides the Court a way to grant some rights but postpone the question of full marriage rights.
Finally, the Court could issue a complete victory for same-sex marriage. If the court decides that there is a constitutional right to marry and that states are required to perform and recognize same-sex marriages, then same-sex marriage will be allowed nationwide. Such a decision will also deem all current same-sex marriage bans are unconstitutional and all states that currently have such bans in place will have to begin issuing marriage licenses to same-sex couples.
The Supreme Court will release its ruling on Obergefell v. Hodges in June.
Leslie A. Gutierrez is an Associate at Clark Hill PLC and focuses her practice on business litigation and estate and trust litigation.
