SCOTUS oral arguments: updated predictions

Last week, I ranked the Supreme Court Justices by their likelihood of supporting marriage equality. In light of Tuesday’s oral arguments, I want to update some of those predictions.

Justice Thomas, to the surprise of no one, said nothing. Still a “No” vote on marriage equality.

Justice Scalia seemed convinced that a Federal right to same-sex marriage would force religious officials to perform them. Justice Breyer had to remind him of the First Amendment. Scalia seemed slightly more willing to force states to recognize marriages performed elsewhere, but is still a “No.”

Justice Alito’s foray into polygamy arguments largely dashed my hope that he will be the seventh vote for marriage equality.

Chief Justice Roberts was vocal but inscrutable. He somewhat surprisingly suggested the marriage bans could fail due to gender discrimination, but was firm that same-sex couples were changing, not joining, the tradition of marriage. Like Scalia, Roberts seemed more willing to force states to recognize same-sex marriages performed elsewhere, knowing that it would likely push state level acceptance. If he can get Kennedy on board, that could be the broad compromise. If not, he still might join the majority to write an opinion based on gender discrimination that would not define a level of scrutiny for other LGBT rights cases.

Justice Kennedy’s opening concern about the “millennia” that marriage has meant opposite sex couples scared most supporters of marriage equality. While he was tough on the couples’ lawyer, he was tougher on the states’ lawyer when he suggested that marriage wasn’t about conferring “dignity.” Kennedy’s vote to overturn the bans seemed less assured than many thought, but still more likely than not.

Justice Ginsburg gave no indication that marriage equality should be delayed, and asked some of the most probing questions. Some Court watchers say “Notorious RBG’s” discussion of older couples who can’t have children was the best argument against the claim that the government interest in marriage is keeping children with their parents. From almost certain “yes” to certain “yes.”

Justice Breyer’s early question about leaving the issue to voters was jarring, but his questioning of the state’s lawyer left a clear feeling that he is “yes” on marriage equality.

Justice Kagan was clearly on the side of equality in her questioning, but I stand by Justice Sotomayor as the best and strongest advocate for same-sex marriage. Two “YES!” votes.

The most surprising thing, based largely on Justice Roberts’ questions, is that a decision to allow the bans but force interstate recognition of same-sex marriage seems a real possibility if Roberts can convince Kennedy it is a better middle ground. I’ll stand by my prediction of a 7-2 decision in favor of marriage equality, but a smaller majority is more likely than I had thought. We’ll know in June.