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.

Boies & Olson: Gay marriage latest fight in civil rights movement

The fight for same-sex marriage is part of a continuum of the civil rights movement and one that has only one valid legal outcome, attorneys David Boies and Ted Olson said Tuesday in Austin during the LBJ Presidential Library Civil Rights Summit, which marks the 50th anniversary of the Civil Rights Act of 1964.

The two high-profile attorneys, who successfully represented the plaintiffs challenging California’s gay marriage ban in 2013, opened the three-day summit with an hourlong discussion that touched on their work on the landmark Supreme Court case, their views on the public’s shifting attitudes toward gay rights, and their relationship as a legal “odd couple” who put aside partisanship to work together. (The attorneys hold different political philosophies and argued opposing sides of Bush v. Gore in 2000.)

“I thought it was extremely important that we present this not as a left-or-right issue but as a constitutional issue,” said Olson, who is currently working with Boies in challenging Virginia’s gay marriage ban.

The attorneys acknowledged that some people hold religious objections to same-sex marriage. But as a legal matter, there should be no question about what is right, Boies said.


“As a matter of legal principle, there simply are not two arguments,” said Boies, arguing that the Fourteenth Amendment’s due process and equal protection clauses, along with U.S. Supreme Court precedent, establish a right to same-sex marriage.

The session, moderated by Daily Beast editor-in-chief John Avlon, did not include an opponent of same-sex marriage.

Momentum is strong in the wake of the court’s June 2013 decisions in United States v. Windsor, striking down part of the federal Defense of Marriage Act that refused to recognize same-sex marriages, and Hollingsworth v. Perry, invalidating California’s same-sex marriage ban, the attorneys said.

Since then, federal district court judges across the country, including in Texas, have cited the Supreme Court rulings in striking down same-sex marriage bans in their states, although the rulings in Texas and elsewhere are being appealed. (In announcing he would appeal the Texas ruling, Attorney General Greg Abbott said the U.S. Supreme Court has repeatedly ruled that states have the power to define and regulate marriage and that the Texas Constitution defines marriage as between a man and a woman.)

The district court rulings, along with rapidly changing public views in favor of gay rights, make it clear that the U.S. is on course to legalize same-sex marriage, Boies and Olson said.

“The Supreme Court has said we do not tolerate putting classes of our citizens into boxes and groups in which we deny them rights to equal dignity,” Olson said. “And that’s what we have done with our gay and lesbian citizens.”