The U. S. Supreme Court never hands down decisions in a vacuum. The decisions are impacted not only by the facts of a particular case but also by surrounding social developments. And it is not uncommon to see the majority opinion engage in contortions when necessary to reach the desired result. Next month the U. S. Supreme Court will hand down decisions in both United States v. Windsor, which challenges DOMA, and Hollingswoth v. Perry, which challenges California's Proposition 8. Since the Court heard oral arguments back in March, three U.S. states have approved gay marriage as have three foreign countries. On top of this, new polls show a majority of Americans supporting gay marriage. A piece in Huffington Post looks at speculation on how these developments will influence the Court's rulings. Here are excerpts:
Three U.S. states and three countries have approved same-sex unions just in the two months since the Supreme Court heard arguments over gay marriage, raising questions about how the developments might affect the justices' consideration of the issue.
In particular, close observers on both sides of the gay marriage divide are wondering whether Justice Anthony Kennedy's view could be decisive since he often has been the swing vote on the high court.
It is always possible that Justice Kennedy is reading the newspapers and is impressed with the progress," said Michael Klarman, a Harvard University law professor and author of a recent book on the gay marriage fight.
In earlier cases on gay rights and the death penalty, Kennedy has cited the importance of changing practices, both nationally and around the world.
The justices took an initial vote in the days after hearing arguments in the two cases in late March. The senior justice on the winning side and the senior justice in dissent assigned opinions based on those votes. But while that first vote is important, it is not the end of the process; justices' assessments of a case can shift subtly or, in some cases, dramatically.
In 1992, Kennedy initially drew the assignment to write a majority opinion for five justices allowing prayers at public school graduations. In the end, he ended up writing the opinion for a different five-justice majority striking down the graduation prayers. According to several accounts, Kennedy simply changed his mind during the writing process.
There is no way to know at this point whether anything similar will happen in the gay marriage cases, either of which could be decided on technical legal grounds that would say little about the court's view of the issue. But there has been no shortage of action.
In a 10-day span earlier this month, lawmakers in Delaware, Minnesota and Rhode Island gave final approval to bills to legalize same-sex marriages. . . . . Internationally, French President Francois Hollande signed a law this month making France the 14th country to recognize gay marriages. Uruguay and New Zealand took similar steps in April.
And further change could come soon. The Illinois Senate has approved a gay marriage bill that now is pending in the state House in advance of the May 31 end of the legislative session. Gov. Pat Quinn has said he would sign it.
During argument in the California case, Kennedy strongly suggested that he was not about to give gay marriage proponents what they are asking for, a decision that would allow same-sex couples to wed everywhere in the United States.
But Klarman wonders whether Kennedy might consider his legacy and the fact that at 76 years old, he might not be on the court for the next big gay marriage case. "He knows that today, he can write the opinion that would be the Brown of the gay rights movement," Klarman said.
I, of course am hoping against hope for a wide across the board ruling for gay marriage. Yes, it may be a long shot. But, if the Court dodges the issues and rules narrowly, for me it will be proof that the Constitution's promise of equality before the law and religious freedom are nothing but a lie. I am anything but alone in this assessment. Does Justice Kennedy understand tat how he rules will put the Constitution on trial?
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