The situation right now: same-sex marriage is legal in 36 states and the District of Columbia—in total, home to about 70% of the US population. The federal government supports immigration, tax, healthcare, and pensions for same-sex spouses. Most federal appeals courts have struck down bans on same-sex marriage, deciding that the 14th Amendment requires states to recognise same-sex marriage.
However, in November the 6th Circuit Court of Appeals (a federal court that covers four states, Michigan, Ohio, Kentucky, and Tennessee) decided that Amendment 14 does not require states to recognise—either in terms of issuing licences and recognising licences issued in other states—the marriage of same-sex couples.
It's pretty clear you can't have a nation state whose courts interpret its constitution so differently on such a vital issue. So the Supreme Court will have to decide which interpretation should apply to the whole country moving forward. They've agreed to hear appeals from all four states affected by the 6th Circuit's decision.
This is one of those history-making decisions. Chief Justice Roberts would, I suspect, I hate to be on the wrong side of history—and given the speed of change in the last couple of years it's clear which way history is going. So he'll vote for the national legalisation of same-sex marriage. So, of course, will the four traditionally liberal justices Ginsburg, Breyer, Kagan and Sotomayor. Justice Kennedy is a big fan of states rights but on this one I think he'll opt for human dignity and vote with the majority. Thomas and Alito will not. Scalia... Well, I don't know to be honest. He might. He just might. It's possible we could end up with 7-2 which would make me very happy.
It would also make the Republican Party very happy. Most of them know same-sex marriage is not a vote-winning issue. A Supreme Court decision for marriage equality would render the radical conservative wing's agitations moot.
In my opinion, there's only one way for this to go. Prepare to party.
* Their term ends at the end of June. SCOTUS likes reserving their big ticket items for the end. As when they announced the decision that struck down DOMA and so legalised marriage in many states—on the 25th anniversary of the day Kelley and I met.
* Their term ends at the end of June. SCOTUS likes reserving their big ticket items for the end. As when they announced the decision that struck down DOMA and so legalised marriage in many states—on the 25th anniversary of the day Kelley and I met.