UT law professor predicts possible outcomes of Supreme Court same-sex marriage cases

Speaking at a CLE hosted by the Austin LGBT Bar Association, Sanford Levinson—a professor of constitutional law and government at the University of Texas—said that it was clear as early as 2003’s Lawrence v. Texas which way the U.S. Supreme Court would rule on same-sex marriage and that the 2013 Windsor decision only made this more certain. The court will convene April 28 to hear oral arguments in four cases challenging state bans on same-sex marriage.

Ruling against these bans is what “everybody expects the court to do,” Levinson said, noting that the real question has always been why the court decided to take up the matter at this time. Levinson noted that he previously had predicted that the court would take up same-sex marriage by 2020, so it’s interesting to examine why it is doing so now. He also posited that other questions include what the vote count will be as well as who will write the opinion and what reasoning the opinion’s author will employ.

Professor Sanford Levinson of the University of Texas School of Law. Photograph courtesy of Christina Murrey and Texas Law.


Many observers expect the court to rule 5-4 with Justice Anthony Kennedy writing the majority opinion, which would likely be full of quotable passages on the importance of marriage to identity and life, Levinson said. “It would be Kennedy’s legacy.” But, he continued, there is a small possibility that the court will rule 6-3 with Chief Justice John Roberts joining the majority in order to control the opinion.

As to the question of timing, Levinson said that Supreme Court justices—particularly Justice Ruth Bader Ginsberg—are mindful of deciding when they will take on such contentious and important issues, sometimes opting to say a case doesn’t have standing.

Ginsberg, for example, has indicated that she believes that the court moved on Roe v. Wade when public opinion wasn’t far enough in favor of such a ruling and that the reproductive rights movement has paid the price. And, she thought in 2013 that the country wasn’t ready for a same-sex marriage decision, Levinson said. “That’s not the case any more. It’s very clear that the majority of the public supports gay marriage,” he said. “This will be the last same-sex marriage case, maybe forever, at the Supreme Court. There literally will be nothing else to say.”

But, Levinson noted, there will potentially be some important cases to follow the same-sex marriage decision, including cases addressing the right to enter polygamous marriages. “We could be in for some really interesting debates on that issue,” he said.

Texas A&M honors transgendered lawyer Phyllis Frye

As Houston lawyer Phyllis R. Frye (pictured) describes it, she’s “had more than [her] 15 minutes of fame, enjoyed it, and handled it well.” Still, she says she is honored and surprised that Texas A&M University has named  the Phyllis Frye Advocacy Award after her. Its first recipient is Dr. James Rosenheim, who will be recognized April 29 during a ceremony presented by A&M’s Department of Multicultural Services. A promo for the awards ceremony says Rosenheim exemplifies "Phyllis Frye's philosophy of not just walking through doors of intolerance, but tearing them down," and that Rosenheim is being recognized for nurturing relationships among lesbian, gay, bisexual, and transgender (LGBT) staff, students, and community members over two decades.

Frye, a partner in Frye and Cantu, PLLC, is nationally known for her activism and advocacy on LGBT issues.

As a man, Frye received engineering degrees from Texas A&M in 1970 and 1971. She transitioned her gender in 1976, and says that over the years her involvement as an A&M alumnus went from being shunned by members of a Houston alumni group early on, to gradual acceptance at reunions of the Singing Cadets and her graduating class. Frye has received numerous awards for her work in  the legal community and the LGBT movement, but seems bowled over by this A&M recognition. “It’s very humbling,” she said. “To have a university name an award after you is a neat thing. I'm thrilled.”