Big Day at SCOTUS

About 38 miles from the scenes of violence in Baltimore, the U.S. Supreme Court today will hold oral arguments in consolidated cases involving challenges to state-imposed bans on same-sex marriage. Nina Totenberg nicely boils it all down for NPR:

Tuesday’s Supreme Court arguments focus on two questions: First, whether bans on gay marriage are constitutional; and second, if they are, whether those states with bans may refuse to recognize out-of-state gay marriages performed where they are legal.

The court has scheduled an extraordinary 2 1/2 hours of argument and will make the audio available online later Tuesday.

Four states — Michigan, Ohio, Tennessee and Kentucky — are defending their bans. They won their case in the lower court, and because other appeals courts threw out bans enacted in other states, the Supreme Court now must resolve the conflict.

The high-stakes legal battle is the culmination of a decades-long struggle in the courts, state legislatures and at the ballot box. During that time, public opinion has changed, and done so more rapidly — and dramatically — than on any major social issue in memory.

And as Greg Sargent points out this morning, all these diverse streams of jurisprudence, political advocacy and public opinion are lead to one place: the desk of Anthony Kennedy, the Reagan-appointed Justice who is widely expected to lead the Court to a landmark decision, probably establishing marriage equality as a federal constitutional principle.

Kennedy wrote the 2003 opinion striking down that 1986 ruling [Bowers v. Hardwick] in favor of the sodomy law, concluding in Lawrence v. Texas that the state cannot “demean” same-sex couples “by making their private sexual conduct a crime.” He also wrote the 2013 opinion striking down the federal Defense of Marriage Act — concluding it relegates same-sex marriages to “second-tier” status and violates the Constitution’s protection of their dignity — which helped precipitate a flood of court decisions knocking down state same-sex marriage bans, leading to the challenges we’re hearing today.

And so any hints dropped today by Kennedy will be descended upon and examined like a paparazzi sighting of a Kardashian with a new lover. As Greg notes, Kennedy could produce not a breakthrough but a compromise:

One way the Court could resolve those conflicting impulses — the right of states to define marriage versus the danger of legalized discrimination Kennedy identified — is by ruling that states must recognize same-sex marriages performed legally elsewhere, but that states are not themselves obliged to license same-sex marriages. After all, this would mean that, for all practical purposes, same-sex marriages are recognized everywhere.

But gay rights advocates badly want to win on both questions: They want the Court to rule that same-sex couples can marry in all 50 states, via a declaration that they have the right to marry.

Greg quotes Lawrence Tribe as suggesting a search for a compromise should be evident in the lines of questioning today. Oral arguments are scheduled to begin, well, right now. You can follow developments at SCOTUSblog.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.