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.