Home > Applying Political Science > Gay Marriage and the Supreme Court – How Will it Decide the Issue?

Gay Marriage and the Supreme Court – How Will it Decide the Issue?

In my last blog, I discussed the question of whether the Supreme Court is more likely to grant certiorari to the various DOMA petitions that raise same sex marriage issues in relation to the distribution of federal benefits or to grant review to the Prop. 8 case that raises the substantive question of whether gay marriage is protected under the Constitution. The Court will meet in conference to review the gay rights petitions on November 20, and the electoral victories for gay marriage laws in Maine and Maryland will only elevate the prominence of the issue for the justices (Liptak 2012). Assuming the Supreme Court does grant cert to California’s Prop. 8 case, a more compelling question, at least from my perspective, is how the Supreme Court might rule on the substantive issue of gay marriage. In a couple of articles, Denniston suggests that the Court may end up simply deciding the case on the same narrow grounds as the Ninth Circuit Court did, namely that a state cannot take away a Constitutional right of homosexuals to marry once the Supreme Court had already recognized that right under the state Constitution (Denniston 2012a, Denniston 2012b). Although this outcome may indeed occur, judicial scholars and court watchers would be far more interested in trying to predict how the Supreme Court Justices would resolve the substantive question at hand:  Do same sex couples have a Constitutional right to marry?

The attitudinal model of judicial behavior provides a method for answering this question. Over the past fifty years, the attitudinal model has dominated judicial scholarship in the United States as the leading explanation for how justices vote in specific cases. Indeed this model of judicial decision-making has gained such prominence, that in one of my articles I suggest that it has generated a “cottage industry of work assessing the validity of the attitudinal model across a wide range of … courts” (Wetstein and Ostberg 2005). Advocates of this theory, like Jeffrey Segal and Harold Spaeth (1993, 2002), argue that justices come to the Supreme Court with certain attitudes and values about various political, social, and economic issues. These attitudes and values, in turn, necessarily influence how they vote in specific cases across a wide spectrum of issues. These attitudes and values that the justice bring to the Court play the most important role in explaining judicial decision-making. Scholars, like Segal and Spaeth argue the values of a Supreme Court justice have a more pivotal role in determining how they vote than precedents, small group interaction, or whether they adhere to a philosophy of judicial activism or self-restraint. What this boils down to is that conservative justices vote conservatively and liberal justices vote liberally across a broad range of issues.

You might be saying to yourself — well of course this is true, but scholars are always looking for evidence to back up the theories they advocate. The Court’s ruling in Bush v. Gore, 531 U.S. 98 (2000), provides one of the best examples of attitudinal decision-making on the modern high Court, where the five most conservative justices ruled in favor of the Bush position on the recount of votes in Florida while the four most liberal justices sided with Gore’s position. Although they believe that attitudes play a role at all judicial levels, as Segal (2006) points out “it should be at its highest at the U.S. Supreme Court level.” Attitudinal arguments hold considerable weight in the realm of political science because these scholars have managed to show across hundreds of empirical studies the veracity of this claim.

If we apply this approach to the Prop. 8 issue, we find that the current Court is equally split 4 to 4 down liberal and conservative lines, with Justices Roberts, Alito, Scalia, and Thomas found at the conservative end of the liberal-conservative spectrum, and Justice Breyer, Ginsberg, Sotomayor, and Kagan anchoring the liberal end. Ironically, the justice who is found in the middle on many Constitutional issues that wind their way to the Roberts Court is Justice Kennedy, who taught at Pacific McGeorge for over thirty years. For example, in the first term of the Roberts Court, Justice Kennedy joined the majority in 24 cases decided by a 5-4 margin, the most of any justice (SCOTUSblog). As in many other Constitutional cases, judicial scholars and lawyers alike believe he holds the pivotal vote in the gay marriage debate. Indeed, his vote is considered so important, that Theodore Olson and David Boies, who started the Prop. 8 lawsuit, carefully constructed their arguments in the case with Justice Kennedy in mind in the event this case actually reached the Supreme Court (Socarides 2012).

To understand how Justice Kennedy might decide the Prop. 8 issue one might turn to the stances he has taken in his prior rulings in the gay rights area for some evidence, especially those at the Supreme Court level. In 1980, when Justice Kennedy was on the Ninth Circuit Court of Appeal, he joined the majority in upholding a policy that allowed the military to discharge homosexuals because of the additional security demands that must be maintained and enforced in the military context, but he acknowledged that in other situations such a policy might not be warranted (Beller v. Middendorf, 632 F.2d. 1388 (1980, 9th Cir.)). His stance on gay rights became more evident once he joined the Supreme Court, and is most readily found in his precedent setting ruling in Lawrence v. Texas (156 L. Ed. 2d. 508 (2003)). In that case, the Court struck down a Texas law criminalizing homosexual sodomy between consenting adults as a violation of their liberty interest under the Due Process Clause of the 14th Amendment. Justice Kennedy, writing for the majority claimed, “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions” (Lawrence v. Texas, 156 L. Ed. 2d 508, at 562). This ruling overturned Bowers v. Hardwick, 478 U.S. 186 (1986), an earlier Rehnquist Court ruling which upheld a similar Georgia statute, and also underscored Justice Kennedy’s personal liberty and human dignity jurisprudence.

Justice Kennedy also demonstrated the ideals of personal and political liberty in his earlier majority opinion in Romer v. Evans, 517 U.S. 620 (1996), where the Court struck down a voter adopted amendment to the Colorado Constitution that prevented state and local government from creating ordinances and statutes that barred homosexual discrimination. According to Justice Kennedy, this amendment must be struck down because it identified, isolated, and treated one group of citizens differently from all other citizens, and thus violated the Equal Protection Clause of the 14th Amendment. At one point he stated, “Homosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres. The amendment withdraws from homosexuals, but not others, specific legal protections from the injuries caused by discrimination, and it forbid reinstatement of these laws and policies” (Ducat 2009, 1316). Taken together, Justice Kennedy’s prior rulings indicate that if the Court were to agree to hear the Prop. 8 case during the 2012 term, and decide the issue on its merits, the Supreme Court would probably hand down a 5-4 ruling in favor of same sex marriage. Such a decision would place the Court and Justice Kennedy on the “right” side of history as public opinion shifts increasingly toward support for gay marriage. This shift in public opinion is evident in the voter sentiment last week supporting gay rights in Maine and Maryland.

Despite this prediction, one must keep in mind that it is not easy to predict how the middle justice on the Supreme Court, in this case Justice Kennedy, will vote in a given dispute or issue area. This points to one of the limitations of the attitudinal model. Although scholarship has found that it is easy to predict the judicial voting behavior of judicial ideologues, or those that are found at the extreme end of the liberal-conservative spectrum, it is much harder for attitudinalists to predict how more pragmatic, centrist justices will rule on a controversial constitutional issue. Despite this underlying flaw in the attitudinal approach, the model provides one of the most powerful explanations for judicial decision-making on the U.S. Supreme Court to date.

Works Cited
Beller v. Middendorf, 632 F.2d. 1388 (1980, 9th Cir.).

Bowers v. Hardwick, 478 U.S. 186 (1986).

Bush v. Gore, 531 U.S. 98 (2000).

Denniston, L. (2012a, August 22). Gay marriage cases: Now up to seven. Retrieved August 27, 2012, from SCOTUSblog: http://www.scotusblog.com/2012/08/gay-marriage-cases-now-up-to-seven.

Denniston, L. (2012b, August 10). Judge: No right to same-sex marriage. Retrieved August 27, 2012, from SCOTUSblog: http://www.scotusblog.com/2012/08/judge-blocks-same-sex-marriages.

Ducat, Craig R. 2012. Constitutional Interpretation, Ninth Edition. Boston: Wadsworth-Cengage.

Lawrence v. Texas, 156 L. Ed. 2d 508 (2003).

Liptak, Adam. 2012. States’ votes for gay marriage are timely, with justices ready to weigh cases. New York Times, November 8, 2012, P7.

Romer v. Evans, 517 U.S. 620 (1996).

SCOTUSblog. 2012. Statistics. Retrieved October 1, 2012 from SCOTUSblog: http://www.scotusblog.com/statistics.

Segal, Jeffrey A. 2006. The Attitudinal Model. Retrieved August 31, 2012, from Empirical Legal Studies Blog: http://www.elsblog.org/the_empirical_legal_studi/2006/07/the_attitudinal.html.

Segal, Jeffrey A., and Harold J. Spaeth. 1993. The Supreme Court and the Attitudinal Model. Cambridge: Cambridge University Press.

______. 2002. The Supreme Court and the Attitudinal Model Revisited. Cambridge: Cambridge University Press.

Socarides, Richard. 2012. Gay Marriage Battle Heads for the Supreme Court. Retrieved September 3, 2012 from Newyorker.com: http://www.newyorker.com/online/blogs/newsdesk/2012/06/gay-marriage-battle-surpeme-court.

Wetstein, Matthew E., and C.L. Ostberg. 2005. “Strategic Leadership and Political change on the Canadian Supreme Court: Analyzing the Transition to Chief Justice.” Canadian Journal of Political Science 38 (3): 653-73.

  1. Jordyn Doyle
    November 12, 2012 at 9:58 pm | #1

    Honestly, gay marriage almost mirrors the controversy of inter-racial marriage. Individuals against gay marriage are using the same arguments that were used decades ago for inter-racial marriage, such as it is a threat to traditional marriage and it is against God’s will. So I do not think that gay marriage will have laws against it forever, because inter-racial marriage has become a social norm, so will gay marriage. It may not be right now, but sooner or later it will be.

    • bklunk
      November 13, 2012 at 8:14 am | #2

      To give opponents of same-sex marriage their due, they would disagree that there is a parallel with inter-racial marriage. In short, they see the sex of partners as relevant to the quality of the union whereas race is irrelevant. This rests on the notion that men and women are complementary others (a view supported by some versions of feminism). It also rests on a teleological view of sex. In that view sexual intercourse is not simply a matter of mutual consent among qualified partners. Again, on its face this argument applies to the sex of partners but not to race.

      The conservative view is also generally that one should not make significant changes to social institutions. The unintended consequences may be undesirable and outweigh whatever good the change was intended to bring about.

      Whether any of that is legally significant is another question altogether.

  2. Lexa Buerer
    November 14, 2012 at 7:36 pm | #3

    I also believe that homosexuals will soon gain rights, such as the right to marry, which are currently being witheld from them. Seeing as how the Supreme Court has taken up the case of California’s Proposition 8, I think that there will be a lot of light being shed on the issue of gay rights from now on. The recent victories for gay marraige in Maine and Maryland could cause the court to agree with the Ninth Circuit Court of Appeal, allowing gays to marry because the California Supreme Court already allowed it. Lastly, I would like to say that I am shocked that the US Supreme Court actually took up the case seeing as how well they have avoided it in the past due to how controversial it is.

  3. Jesus Hernandez
    November 15, 2012 at 1:24 pm | #4

    Despite the social advancements society has made, it seems as if a portion of same-sex marriage supporters base their decisions on impulse insofar as many are tagging along with the movement because they don’t want to be seen as hateful people.There are various effects that same-sex marriage can have on children and they are being ignored. What’ll be legalized next? Bigamy? You may baffle at first but 30 years ago many would have seen same-sex marriage as a taboo just as bigamy is seen today. Why do same sex couples have the right two marry and not three people. Just some questions to ask.

  4. j.d.
    November 15, 2012 at 2:04 pm | #5

    From what you have written about Justice Kennedy, it seems extremely likely that he will vote in favor of same sex marriage. If the liberal and conservatives are as predictable as you say, then we have an interesting ruling on our hands. WE ARE WATCHING YOU JUSTICE KENNEDY.

  5. Sam Stodolski
    November 20, 2012 at 10:17 am | #6

    I think Justice Kennedy will go Earl Warren on the court and surprise many. The issue of same sex marriage has been debated for so long now I think it will get its turn to be settled and I agree with Professor Ostberg that Justice Kennedy will decide in favor of same sex marriage. My only question is whether or not they will view marriage as a legal contract between two consenting adults, or define it as something different.

  6. Monique
    November 26, 2012 at 9:35 pm | #7

    I find it very interesting that we have found liberal and conservatives to be extremely predictable. You would think that although personal beliefs and values come into play, there is so much more that should matter when making decisions on these issues & for that reason they should more often than not be set aside there for making who votes what very unpredictable, but this obviously is not the case. I also find it very interesting that Justice Kennedy’s vote is that important. I do think, by how he was described in this blog, that he will vote in favor of same sex marriage. You never know what will happen though, so we will see!

  7. November 29, 2012 at 1:34 pm | #8

    After reading this I honestly feel that Justice Kennedy would be against same sex marriage and that he wouldn’t even think to vote otherwise. However, I still wonder why same sex marriage is still an issue. It doesn’t affect anyone else but the people that are entering that institution of marriage. Conservatives and Liberals really need to try and open their minds up so that we can still live in a country of justice and liberty.

  8. Donna
    December 14, 2012 at 7:07 pm | #9

    Honestly I’m indifferent to this issue and I could careless, but because Its an assignment I will answer this blog entry to the best of my ability. I just feel that like any other issue it has its advantages and disadvantages and sooner or later its going to simmer down and it will become acceptable in todays society and be like any other issue we’ve overcome.

  9. April 8, 2014 at 11:16 am | #10

    Wow! Finally I got a webpage from where I be capable of really take helpful data concerning my study and knowledge.

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