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

November 12, 2012 9 comments

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:

Denniston, L. (2012b, August 10). Judge: No right to same-sex marriage. Retrieved August 27, 2012, from SCOTUSblog:

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:

Segal, Jeffrey A. 2006. The Attitudinal Model. Retrieved August 31, 2012, from Empirical Legal Studies Blog:

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

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.


The Gay Marriage Issue and the Supreme Court Docket

September 23, 2012 14 comments

The Supreme CourtAs we approach October, it is clear that a critical Constitutional issue is likely to make its way onto the Supreme Court docket in the upcoming term: the issue of gay marriage. This is not surprising since questions surrounding this issue have been slowly winding their way to the Supreme Court for well over a decade. According to Lyle Denniston, by the middle of August there were as many as seven petitions filed with the Supreme Court pertaining to the gay marriage issue (Denniston, Gay marriage cases: Now up to seven 2012a). Denniston claims that these seven petitions can be subdivided into two distinct categories that would present disparate but related constitutional issues the Supreme Court might address. While six of the petitions deal with the constitutionality of critical portions of the Defense of Marriage Act (DOMA – a federal law which only allows heterosexual couples to receive certain federal benefits), the Proposition 8 petition addresses the constitutionality of a voter approved ban on same sex marriage that was passed in California in 2008. The high profile nature of these disputes has prompted a special symposium on SCOTUSblog dealing with gay marriage (see for example Carpenter 2012 and Duncan 2012). On the eve of the Supreme Court’s decision to either accept or reject these cases for oral argument, one might wonder what triggered the disputes in the first place.

Ever since Congress passed DOMA in 1996, stipulating that the federal government only recognized marriage as a union between a man and a women, gay and lesbian groups throughout the country have sought to have DOMA struck down in federal court as a violation of their Equal Protection and Due Process rights under the Constitution. Since another portion of DOMA only allows heterosexual couples to receive critical federal benefits, gays and lesbians have argued in court that they are not being treated equally under federal law. Denniston has pointed out that DOMA will have a profound impact on scores of other federal programs as well, including retirement benefits, social security, federal income tax, and medical leave provisions to name a few (Denniston 2012a). As a result, the stakes in the DOMA petitions could not be higher. If the Supreme Court were to grant review of the DOMA petitions, its ruling would have a wide-ranging impact on countless federal benefit programs.

At the same time, there has been a parallel dispute going on at the state level regarding whether marriage should be defined as a union between a man and a women. Over the past decade, legislatures and courts in the various states have grappled with this issue, and to date only six states recognize same sex marriages while 39 explicitly do not. In the upcoming election in November, the citizens of four more states, namely Maine, Maryland, Minnesota, and Washington, will be asked at the polls whether their respective state should recognize same sex marriage or not (Denniston 2012b). In California, the voters passed Prop. 8 in 2008 which defined marriage as between a man and a woman (it passed by a 52-48 margin). The proposition invalidated an earlier California Supreme Court ruling that determined that a state ban on same sex marriage violated the state Constitution (In re Marriage Cases, 43 Cal. 4th 757 (2008)). Gay and lesbian groups obviously challenged the law, and have won resounding victories in lower federal court.

Although all seven gay marriage petitions for review before the Supreme Court deal with laws that discriminate against homosexuals, according to Denniston only the Prop. 8 case raises the fundamental question of whether same sex couples should have the right to marry, because the homosexual couples that initiated the various discriminatory claims in the various DOMA petitions had already been legally married under state law (Denniston 2012a). What is unique about the California case is that there are gay couples who want to get married in California but have been denied the right to do so by Prop. 8. Some Court watchers believe it is unlikely that the Supreme Court would grant review to both the DOMA and Prop. 8 petitions. So, one burning question for journalists and legal scholars is speculating which of the cases is the Supreme Court more likely to hear during the 2012 judicial term?

Since the Supreme Court obtained almost complete discretion over its own docket in 1988, it has the power to decide almost all the cases it wants to hear in a given year. In order for a case to be heard at the Supreme Court level, scholars have noted that four justices must agree to hear the case, using what is called the “rule of four” for granting certiorari (Baum 2001). Ironically, only a minority of justices on the Court need to agree to review a lower court decision. Having said this, the Court receives thousands of petitions each year, so it can only select a fraction of the cases that are petitioned to it. Sometimes it is difficult to forecast which cases it will hear because scholarship has found that some justices use the cert decision process in a strategic manner in order to block cases from being selected for review by the Court. These defensive cert denials are triggered when a justice believes that either a lower court ruling is correct, or that the other members of the Supreme Court will not rule on the issue in the way they want. This strategic decision making process at the certiorari stage has been studied extensively by judicial scholars, and can throw a monkey wrench into the litigation and appellate plans of plaintiffs and defendants.

So when does the Court grant certiorari? Scholars have found that some of the traditional reasons for granting cert include whether the federal government is petitioning for review in the dispute, whether an important constitutional or federal issue is raised, and whether there are conflicting rulings in lower federal or state courts. In light of these factors, one could forcefully argue that the Court should hear the DOMA set of petitions because they raise important federal and constitutional questions that impact over a 1,000 federal laws or regulations and the federal government is clearly a party to the suit. On the other hand, since various states now have conflicting policies regarding gay marriage, it makes sense that the Court would address once and for all the underlying fundamental question of whether gay couples have a Constitutional right to marry. This implies that the Prop. 8 petition may outweigh the six DOMA ones during the cert stage in the minds of the justice. However, every court watcher knows that justices and judges often take the easiest path to resolve a dispute. The thinking is: why resolve a difficult substantive issue if you do not have to? So even if the Supreme Court agrees to hear the case, it may choose to duck the substantive issue in the case on the basis that the petitioners bringing the Prop. 8 appeal did not actually suffer any harm, and thus lacked standing to be participants in the litigation. Alternatively, the justices of the Supreme Court might only write a brief opinion that simply follows a 1972 summary judgment handed down by the Supreme Court in Baker v. Nelson, 409 US 810 (1972), where it ruled that a Minnesota law limiting marriage to heterosexual couples did not raise a substantial federal question. In August, a federal district judge in Hawaii took just this stance, where he concluded that the 1972 Baker ruling decided this issue and set precedent, stipulating that same sex couples do not have a right to marry (Denniston 2012b). Ultimately, I think the Supreme Court will grant review to the DOMA petitions, postponing the more complicated issue of gay marriage issue to another day. One thing is for certain: regardless of which set of cases the Supreme Court chooses to hear, the legal battle for marriage equality will continue for some time to come.

Works Cited
Baum, Lawrence. 2001. American Courts: Process and Policy. New York: Houghton Mifflin Company.

Baker v. Nelson, 409 US 810 (1972).

Carpenter, D. (2012, September 19). Same-sex marriage symposium: Justice Scalia’s case for gay marriage. Retrieved September 22, 2012, from SCOTUSblog:

Denniston, L. (2012a, August 22). Gay marriage cases: Now up to seven. Retrieved August 27, 2012, from SCOTUSblog:

Denniston, L. (2012b, August 10). Judge: No right to same-sex marriage. Retrieved August 27, 2012, from SCOTUSblog:

Duncan, W. (2012, September 19). Same-sex marriage symposium: Time for an answer – does the Constitution require same-sex marriage? Retrieved September 22, 2012, from SCOTUSblog:

In re Marriage Cases, 43 Cal. 4th 757 (2008).

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