The fact that marriage equality is being argued before the Supreme Court, with the court seeming poised to strike down gay marriage bans, is a pleasant surprise for me. Five years ago, I thought I would be an old man or deceased before gay marriage was legal in all fifty states. I have never been happier to be wrong. We know that Justices Ginsburg, Sotomayor, Kagan, and Breyer will vote to legalize gay marriage. Scalia, Thomas, and Alito are a safe bet to rule against it. The wild cards in the high court’s deck are Justices Kennedy and Roberts. On April 28, Roberts raised a point made a few years ago by libertarian writer Ilya Somin, that point being that gay marriage bans are a form of gender discrimination because they forbid individuals from doing something that would be permitted if they were of the opposite gender; that is to say, a man is allowed to marry a woman, but a woman is allowed to marry a woman. So I would not be surprised at all if we see Roberts side with the four liberal judges to legalize gay marriage while writing a concurring opinion explaining that he has a different reason for his decision than they do. In such a scenario, the four liberals would declare gay marriage bans a form of sexual orientation-based discrimination, while Roberts would declare it gender-based discrimination. Something similar to this occurred in McLaughlin v. Florida, the 1964 Supreme Court case striking down the Sunshine State’s law against interracial cohabitation, though of course a ruling against interracial marriage bans would take another three years. The Supreme Court’s ruling in McLaughlin was unanimous, but it included two concurring opinions in addition to Byron White’s main ruling, one written by John Marshall Harlan II, the other written by Potter Stewart and joined by William “Wild Bill” Douglas. Stewart’s concurrence used an argument similar to the one used by Somin and possibly Roberts. “I think it is simply not possible,” wrote Stewart, “for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor.” Of course, Stewart and Douglas were ruling to the Left of other judges, as they were arguing that laws against interracial cohabitation were unacceptable under any circumstances, whereas White’s ruling argued that Florida’s ban did not meet “strict scrutiny.” Roberts would be positioning himself to the Right of four other judges. But the analogy still holds.
I also want to look at another possibility: the possibility that certain judges have not yet decided for sure how they will rule and may change their minds during deliberation. There is some evidence that such an occurrence took place in Brown v. Board of Education. According to Douglas, when the case was initially argued in 1952, an immediate ruling would have resulted in the court upholding public school segregation 5-4 with Douglas, Harold Burton, Sherman Minton, and Hugo Black dissenting. The questions for scholars have become: 1. Was Douglas’s reading of five judges correctly? 2. How in the world did we end up with an 9-0 ruling against segregation? Scholar Michael J. Klarman takes the position that while Douglas may have been correct to claim that only he, Burton, Minton, and Black were prepared to rule against segregation in 1952, he somewhat misread the sentiments of three other judges. In Klarman’s view, Tom Clark, Robert H. Jackson, and Felix Frankfurter all felt conflicted, with Jackson and Frankfurter in particular personally opposing public school segregation but feeling that it was constitutional. Chief Justice Fred Vinson and even more so Stanley Reed were probably against an anti-segregation ruling. On the other hand, some evidence suggests Frankfurter always planned to rule against segregation, and one theory is that when he and Jackson were expressing misgivings about judicial activism, they were just spinning their wheels trying to find a way to arrive at “the decision they wanted to reach” (striking down segregation). In Jackson’s case, this theory is subject to further controversy due to the fact that a law clerk of his by the name of William Rehnquist wrote a memo upholding segregation and later claimed that he had been asked by Jackson to write it as a summary of the judge’s stance. A secretary of Jackson disputes this claim, and Rehnquist certainly never needed anyone’s prodding to be bigoted, but there is still a distinct possibility that the future Chief Justice was telling the truth. At any rate, there is no denying that some of the justices would have originally upheld segregation. In Vinson’s case, it was a 1953 fatal heart attack that removed him from the equation. His replacement, Earl Warren, had racked up a mixed record on civil rights as Governor of California but came to the court determined to strike down Jim Crow schooling. While his ascension to the Court guaranteed at least a 5-4 anti segregation ruling, Warren wanted a unanimous decision and set about working for this goal. Once it became apparent that Frankfurter, Jackson, and Clark were going to vote against segregation, the staunchly segregationist Reed decided that he did not want to be the 1 in 8-1 and switched sides.
I would not be too surprised if the Supreme Court’s “pro gay marriage-undecided-anti-gay marriage” ratio is currently 4-2-3 with Ginsburg, Sotomayor, Kagan, and Breyer planning to rule in favor of gay marriage, Kennedy and Roberts undecided, and Thomas, Scalia, and Alito planning to rule against it. If that is the case, I believe something along the lines of the Brown deliberation may take place in which Kennedy decides to rule in favor of gay marriage, after which Roberts MAY feel comfortable joining him. Perhaps, they would like to rule in favor of gay marriage but are looking for a constitutional reason to do so. That could explain Roberts’s suggestion that anti-gay marriage laws discriminate based on gender. At any rate, there will not be a unanimous verdict like there was in Brown, McLaughlin, and Loving. Even if Alito and Thomas shock everyone and join the side of the angels, Scalia never will. He has a strong libertarian streak on free speech that caused him to rule to the Left of John Paul Stevens on flag desecration, but his extreme homophobia overrides any libertarian leanings he might have. It is important to note that in the 2003 Lawrence v. Texas decision overturning state laws against homosexual sex, Thomas called “sodomy laws” “uncommonly silly” despite dissenting from the majority. Scalia made no such disclaimer and just focused on making his dissent an anti-gay screed. Then again, there is a sliver of possibility that I could be wrong. It is unlikely anyone thought Stanley Reed would assent to a groundbreaking pro-civil rights decision. And if anyone had told me in high school that by 2015, we would be on the verge of having gay marriage legalized, I would have been truly astonished.