Gay marriage supporters hold a gay rights flag in front of the Supreme Court before today's hearing
In what it is widely anticipated to be a landmark case for marriage equality, the U.S. Supreme Court will hear oral arguments Tuesday in Obergefell v. Hodges from 10 AM to 12:30 PM EST. Expedited audio and a transcript of the arguments are due to be released at 2 PM EST, according to Karen Ocamb.
The consolidated case is a combination of four different lawsuits filed in the 6th Circuit by couples from Kentucky, Michigan, Ohio, and Tennessee, none of whom expected to wind up at the Supreme Court. The 6th Circuit was the first appellate court to uphold same-sex marriage bans after three successive appellate courts had ruled them unconstitutional.
The high court will explore two questions: 1) the power of the states to ban same-sex marriage; 2) the power of states to refuse recognition of same-sex marriages performed legally in other states.
Before the 6th Circuit ruling presented the justices with an appellate split on the matter, they had decided against reviewing the marriage question—presumably an indication that they were prepared to watch marriage bans continue to fall like dominoes across the country. Some experts say the fact that they only stepped in after the 6th Circuit ruled such bans constitutional was telling.
“If they were going to uphold state bans, they wouldn’t have let it go this far,” said Neil Siegel, a law and political science professor at Duke University Law School. “Because the court declined to get involved earlier, you have many more same-sex couples that have lawfully been able to marry, and the court allowed that. I don’t think they are going to say, just kidding, or throw the country a curve ball now.
For more of a primer on the Supreme Court arguments, head below the fold.
Many are betting that Justice Anthony Kennedy will side with the court's four liberal justices—Ruth Bader Ginsberg, Elena Kagan, Sonia Sotomayer, and Stephen Breyer—to strike down same-sex marriage bans nationwide. Kennedy is the high court's notorious swing vote on LGBT lawsuits and has authored all three major Supreme Court wins for gay rights: striking down a statewide Colorado ban on pro-gay legislation in 1996, overturning state laws that criminalized sodomy in 2003, and gutting a federal law that prevented the U.S. government from recognizing legally performed same-sex marriages in 2013.
Naturally, same-sex marriage foes have gone into overdrive trying to find factual evidence for their side of the argument since every major professional organization has rejected the claim that gays are inherently bad parents.
Here's my absolute favorite claim, reported by journalist Pema Levy:
Same-sex marriage will cause an additional 900,000 abortions:
[Attorney Gene] Schaerr, writing on behalf of "100 scholars of marriage," argues that states with same-sex marriage have seen a decline in opposite-sex marriage by "[at] least five percent." Schaerr extrapolates this 5 percent figure, concluding that over the next 30-year "fertility cycle," nearly 1.3 million women will forego marriage. Arguing that unmarried women are more likely to get abortions, Schaerr calculates an additional 900,000 abortions. But, he acknowledged to the Washington Post last week, "it is still too new to do a rigorous causation analysis using statistical methods."
Would be worth knowing whether same-sex marriage has also declined by a similar amount in other states.
But these are the type of unfounded arguments that may have gotten a lot more traction when same-sex marriage was more of an unknown quantity. Now that lesbians and gays are marrying in 37 states across the nation and the District of Columbia, purely speculative junk science just doesn't sell as well in a court of law. The nation's general familiarity with same-sex marriage was also demonstrated by a recent Washington Post/ABC News poll that put support for same-sex marriage at an all-time high of 61 percent nationwide.
Perhaps Ruth Bader Ginsberg had the most telling take of all when speaking to New York Times columnist Gail Collins in January:
Like practically every court observer in the country, she has a strong hunch about which way gay marriage will go: “I would be very surprised if the Supreme Court retreats from what it has said about same-sex unions.”
Ginsberg was clearly referring to the 2013 decision overturning the heart of the Defense of Marriage Act. That's the ruling that paved the way for same-sex marriage to go from being legal in nine states plus D.C. to 37 states in the virtual blink of an eye.