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.