University of Illinois law professor Sara R. Benson, an expert on sexual orientation and the law, spoke with News Bureau business and law editor Phil Ciciora about the pending U.S. Supreme Court case that will decide whether same-sex couples have a constitutional right to marriage. The court’s final decision is expected in June.
What do you foresee happening with the case? How much do you think concerns about being on the wrong side of history will play into the outcome? In other words, will the court find a way (as it has in the past) to make a unanimous decision?
I can guarantee that it won’t be a unanimous decision. Justice Scalia and Justice Alito were explicit in their 2013 dissents in U.S. v. Windsor about how they feel about the issue. They think that marriage is a state issue and there ought to be greater concerns by the entire court about federalism. I did not see either one of them in oral arguments wavering on that position at all. The questions they asked very much mirrored that line of thinking. Scalia, as we all know, does not change his mind often or easily. So he is not likely to contradict his strong Windsor dissent.
It’s also clear that justices Breyer, Ginsburg, Kagan and Sotomayor favor gay marriage. So it’s more a matter of which side Justice Anthony Kennedy will favor as the swing voter. I think it’s likely to be a 5-4 decision in favor of gay marriage, with Justice Kennedy as the swing vote. It could be a 6-3 decision if Chief Justice John Roberts joins the majority or writes a concurring opinion. It seems that Roberts may be willing to see this case as a clear-cut sex discrimination issue, based on one of the questions he asked during oral arguments.
Predicting the exact grounds for the decision is a lot harder because there were so many different arguments made. I would echo what Justice Sotomayor said in the oral arguments, which is that this case is an easy one. It’s a question about the fundamental right to marriage, and denying that right to an entire group of people. That’s as easy as it gets because you simply can’t do that – as the court pointed out in 1967’s Loving v. Virginia.
In Loving, the court ruled that laws excluding people of different races from marrying each other were unconstitutional. Now people are being excluded from marriage on the basis of sexual orientation. And my take is, because marriage is such an important right, you simply can’t do that, end of story.
If the court doesn’t want to get into splitting hairs about whether sexual orientation is subject to heightened scrutiny, which I think would be best for them to avoid, then that would be the easiest way to structure the opinion.
Would a 5-4 decision in favor of gay marriage be seen as one that undermines its legitimacy?
No, because quite a few historic Supreme Court decisions have been 5-4 decisions, including the affirmative action decision in 1978’s University of California v. Bakke, the decision upholding the Affordable Care Act and the Windsor decision. You could look at a 5-4 decision as one that reflects public sentiment on the issue itself – a majority is for it, but there are still a number of people who are against it. Ultimately, though, a decision is legitimate if a majority of the court favors one side. The Constitution and the members of the Supreme Court do not have to placate everyone. The entire purpose of the equal protection clause, which is the basis of the original lawsuit, is to protect the rights of the minority from the will of the majority.
Historically, 5-4 decisions are a little more controversial, but they don’t call into question the legitimacy of the court or the outcome itself.
The latest polling indicates that public opinion has undergone a dramatic and generationally driven shift on gay marriage, with 58 percent of Americans now favoring same-sex marriage. Does that bode well for gay-marriage advocates?
Yes. The Supreme Court doesn’t like to go out on a limb, so having public support helps, especially if it’s a 5-4 decision. There was talk during oral arguments about how the justices wanted the public to have time to vet the issue before making a decision either way. The justices want legislatures to have time to grapple with the issues first before they decide what the law of the land should be.
Justice Kennedy also pointed out during oral arguments that the time between Brown v. Board of Education and Loving v. Virginia, the landmark cases of the civil rights era, was 13 years. He also noted that it’s been almost 13 years since the 2003 decision in Lawrence v. Texas, the watershed case that legalized same-sex sexual activity in the U.S.
In other words, if 13 years provided enough time for the public to thoroughly engage with the idea of allowing different races to marry after the desegregation case of Brown, then surely we have had enough time between the Lawrence decision and the current case.
To me, that was a pretty good indicator that Kennedy has made peace with how public opinion has evolved.
If gay marriage is legalized, what effect will it have on religious freedom issues?
The short answer is not much. This issue was discussed somewhat obliquely during oral arguments. If there’s a constitutionally protected right to gay marriage, do ministers have to marry same-sex couples or, by refusing, are they violating the Constitution? As Justice Kagan pointed out, even now, ministers don’t have to marry people if they don’t want to because of religious freedom. A clerk of the court or a judge would have to marry a same-sex couple, but you couldn’t compel a religious officiant to do so.
Undoubtedly, though, there will be other issues that arise from the decision. We will just have to wait and see.