It’s been an interesting week at the Supreme Court. Monday, the Court declined to take up any challenges to Circuit Court rulings in favor of marriage equality, apparently adding the five states involved to the 19 states already allowing same-sex marriage. (Those who remember this column, https://lgbtweekly.jeffjungblut.com/2014/02/27/marriage-equality-its-not-over-til-its-over/, will understand why I’m feeling a little smug.)
It was assumed that the states in the Fourth and Tenth circuits would have to come along, making 30. Tuesday, the Ninth Circuit ruled in favor of marriage equality in cases from Idaho and Nevada, and it was presumed that Alaska, Montana and Wyoming would have to follow suit. Soon, there would be 35 states with same-sex marriage.
But a funny thing happened on the way to Idaho. Early Wednesday morning, Justice Anthony Kennedy, the presumed fifth vote in favor of marriage equality on the Court, issued a stay of the Ninth Court ruling. Some legal wrangling later in the day allowed same-sex marriages to move forward in Nevada, but kept Idaho on hold. If the Supreme Court’s original decision not to take up any marriage cases was a curve ball, this was a screwball.
Does this mean Kennedy won’t rule in favor of marriage equality? Not necessarily. Kennedy was able to act on Idaho’s request on his own, but it takes four justices for the Supreme Court to hear a case. Maybe he wanted to take a case to make a nationwide decision, and couldn’t get three colleagues to agree. Maybe he felt bad for states that didn’t get to make their arguments against marriage equality. Or maybe, just maybe, this was the case he was waiting for.
When it comes to pro-LGBT court decisions, the victory has often been clearer than the reasoning. Much of Romer v. Evans was based on Kennedy’s dislike of rules that existed only to hurt a specific group of people, which he called “animus”. Lawrence v. Texas was similar, though phrased more as the idea that moral disapproval didn’t trump the privacy rights of consenting adults. Even Windsor v. United States was such an odd mix of federalism and anti-discrimination that it’s hard not to sympathize with Justice Scalia, who called it “legalistic argle-bargle.” None of those decisions clearly invoke equal protection or due process, a dodge that would have been hard to maintain in review of the current circuit decisions, which were typically decided on one or both.
Which brings us back to the Ninth Circuit decision. One of the concurrences, by Judge Marsha Berzon, uses an Equal Protection argument, but not because same-sex marriage bans discrimination on the basis of sexual orientation. Rather, she suggests they discriminate on the basis of sex. In short, if Sue and Bob both want to marry John, Sue can because she is a woman, and Bob can’t because he is a man. If the only difference between Sue and Bob is their gender, that’s discrimination based on sex.
Since sex based discrimination is already subject to higher scrutiny, Berzon’s reasoning allows the same-sex marriage bans to be voided without breaking much new ground. It avoids giving homosexuals “special rights” as a class under equal protection, which gives conservative justices some cover in messaging if not reality. For those still worried about a slippery slope to incest and polygamy, it avoids making marriage such a fundamental right under due process that it can’t be limited.
We should know more about Kennedy’s plans soon, as his order asked for responses by this afternoon. Further review of the Ninth Circuit decision, however, doesn’t necessarily mean Kennedy is slowing down or stopping the train toward nationwide marriage equality. It may just be that he finally found his preferred way to get us there.
I do not think this analysis correctly reads Justice Kennedy’s tea leaves.
The Idaho governor (Otter) applied to the 9th Circuit for an “en banc” (all the judges) review of the decision of its three judge panel which had ruled in favor of immediate marriage equality in Idaho and Nevada. This is a petty delaying tactic, because the full 9th Circuit court almost certainly will affirm the decision of the three judge panel (probably by not granting an “en banc” hearing).
Since the 9th Circuit was not sitting at that exact moment, Otter asked the Supreme Court for a stay of the marriage equality ruling until the 9th Circuit could consider this last minute appeal. The question of the stay went to Kennedy because Kennedy receives such motions regarding the 9th Circuit. If Justice Kennedy had refused to issue the requested stay, Otter would have been free to ask other members of the Supreme Court to consider the stay. This almost certain would have resulted in even greater delays — which of course was what Otter was after. But granting the stay and calling for immediate arguments Kennedy did the thing most likely to put marriage back on track as quickly as legally possible. There was a misunderstanding about the stay, so some thought it also applied to Nevada. Kennedy amended the stay later in the day, clarify that it applied only to Idaho. By this time, Nevada officials were thoroughly confused. You cannot really blame them as almost everyone else was confused.
Kennedy did the most equality friendly thing he could have done, but it was also the thing that he was supposed to do in fielding stuff from the 9th Circuit.
This really says nothing about whether Kennedy might be the fifth vote if the Supreme Court ever takes up the issue of marriage equality head on.
It is really the 9th Circuit’s job to rebuke Otter for his pointless delaying tactic. That is where the stuck cog is, at the moment.