So what can be gleaned from the list of gay rights decisions and the Justices' votes which we laid out in the last post? A few interesting facts emerge.
Of the 7 cases--from Bowers v Hardwick in 1986 to U.S. v Windsor in 2013--all but one resulted in a deeply divided Court. In that one exception, Hurley v Irish American Gay, Lesbian, and Bisexual Group (1995), the unanimous Court sided with the organizers of Boston's St. Patrick's Day Parade who, contrary to Massachusetts' anti-discrimination law, refused to permit openly gay and lesbian marchers.
In Hurley, Republican and Democratic Justices, conservatives and liberals, joined together to favor the expressive rights of parade organizers over the equal rights of gays and lesbians.
But that unanimity was an outlier. Typically--meaning, in all the other cases--there has been division, strongly worded dissents, bitterness separating the Justices.
There have been Justices who adamantly and consistently have opposed gay rights. Justices seemingly opposed to recognizing any gay rights or protections whatsoever. Not just when gay rights are in competition with the [apparently sacrosanct] rights of parade organizers.
So, Justices Scalia and Thomas--as well as Rehnquist while he was on the Court--have always voted against gay rights. They favored parades-as-free-speech over equal protection for gays and lesbians, just as the other Justices did, in Hurley. But they also sided with a state law that denied gays and lesbians the right to sue for discrimination (Romer v Evans). Sided with the Boy Scouts' claimed right of association to exclude gay troop leaders (Boy Scouts of America v Dale). Sided with state laws that made gay and lesbian intimacy a crime (Lawrence v Texas). Sided with a student religious group that refused to admit gay and lesbian members (Christian Legal Society [CLS] v Martinez). And sided with a federal law (i.e., the so-called Defense of Marriage Act [DOMA]) that denied any recognition and all marriage benefits to legally married same-sex couples (U.S. v Windsor).
In short, Scalia and Thomas--and Rehnquist while he was on the Court--have sided with whatever interest might have competed with or conflicted with the rights of gays and lesbians.
Among the more recently appointed Justices, Roberts and Alito have voted in 2 of the cases. In both, they opposed the assertion of gay rights. In CLS, they voted to support a student group's entitlement to state college benefits, despite the group's membership policy to exclude gays and lesbians. In Windsor, they approved DOMA's denial of federal recognition and benefits to state married same-sex couples.
Notably, all 5 of the aforementioned anti-gay rights voting Justices--Rehnquist, Scalia, Thomas, Roberts, and Alito--are Republicans, were appointed by Republican Presidents, and had worked in Republican administrations, Notably also, all of them have voting records that, as a whole, are strongly politically conservative.
On the other end of the spectrum, there's Justices Ginsburg and Breyer--as well as Stevens and Souter while they were on the Court. Other than in the unanimous Hurley (St. Patrick's Day parade) decision, these Justices voted to protect gay rights in every case in which they participated. So whether it was the state law denying gays and lesbians the right to sue (Romer), the Boy Scouts excluding gays as troop leaders (BSA v Dale), state laws criminalizing same-sex intimacy (Lawrence), the college group denying membership to gays and lesbians (CLS), or the federal law disqualifying legal same-sex marriages from federal recognition and benefits (Windsor), these Justices always supported equal protection and due process rights for gays and lesbians over the asserted opposing interests.
The most recently appointed members of the Court, Sotomayor and Kagan, have cast a total of only 3 votes between them in these cases. Sotomayor in CLS, and both Sotomayor and Kagan in Windsor. All 3 of those votes were cast in support of gay rights.
Justices Ginsburg, Breyer, Sotomayor, and Kagan are all Democrats, appointed by Democratic Presidents, and have voting records that overall are politically liberal--from moderately to strongly so.
As for Stevens and Souter, however, they are each Republicans who were appointed by Republican Presidents. But both of them compiled voting records that turned sharply politically liberal over the course of their tenures on the Court. They were reliable pro-gay rights votes.
Then there is Justice Kennedy. Other than in the Boy Scouts case, in which he voted with the Republican Justices to uphold the claimed associational right to exclude gay troop leaders, Kennedy has been with the liberal Justices in each case. So he supported gay rights against the state law denying gays and lesbians the right to sue for discrimination (Romer), against state laws criminalizing homosexual intimacy (Lawrence), against the student group that excluded gays and lesbians (CLS), and against the federal law denying recognition and benefits to same-sex marrieds (Windsor).
Ironically, Kennedy is not only a Republican whose overall record is at least moderately conservative, but he was appointed by Ronald Reagan, perhaps the most politically conservative Republican President in modern history. Beyond that, Kennedy has not only been a, if not the, deciding vote in cases supporting gay rights, but as Supreme Court watchers know, he has authored many of the majority opinions. And he has done so in grand, lofty language that certainly suggests that his support for gay rights is not tepid, but rather that he places gay rights alongside the nations' other great civil rights struggles.
To sum this all up, as it now stands the Court has 4 virtually certain votes to support a constitutional right to marry for same-sex couples. Yes, Ginsburg, Breyer, Sotomayor, and Kagan. To be sure, it would be a shock if any of them voted otherwise.
It also seems pretty reasonable to expect that Justice Kennedy will vote the same and, thus, assure a pro same-sex marriage majority. A contrary vote by Kennedy would not be as much of a shocker as would be such a vote by one of the 4 liberal Democratic Justices. Nevertheless, it is hard to imagine that Kennedy will suddenly halt the direction in which he has been a leader in taking the Court.
On the far opposite side of the Court's ideological spectrum, it is equally hard to imagine that Scalia or Thomas would suddenly switch course and support same-sex marriage. They have been utterly and vehemently unsympathetic to every claim of right by gays and lesbians. As already noted, those 2 have opposed gay rights in every case in which they've voted. They have, instead, found every and any asserted competing interest to be superior to equal protection and due process for gays and lesbians.
Similarly, if not identically, Roberts and Alito have thus far displayed little sympathy for gay rights. They have, however, participated in only the 2 most recent cases, CLS and Windsor. Of those two Justices, Alito's record seems the more conservative and traditional, and he will likely vote to uphold the right of states to ban same-sex marriage.
But, who knows. Alito's dissenting opinion in Windsor (the DOMA case) was more about whether the Court should go so far so soon while, in his view, the jury was still out about the societal ramifications of same-sex marriage. His argument might not have been terribly sympathetic to gay rights. But neither was it the sort of hateful, disingenuous anti-gay nonsense we've come to expect from others. So Alito's vote is likely a no on same-sex marriage, but a yes would not seem entirely out of the question.
As for Roberts, again, he has shown little sympathy for gay rights. But--and this is the critical but--does he want to go down in history as being on its wrong side? Does he want to go down in history as the Chief Justice who opposed what surely represents the inevitable progress of enlightened, free societies throughout the civilized world to recognize equal rights for gays and lesbians? Does he want to go down in history as the Chief Justice who opposed his own Court's march in that direction?
Roberts' political background, his clear ideological leanings, his voting record all say one thing: no to same-sex marriage. But his leadership, his reputation, his legacy--what history will say about "The Roberts Court"--suggest his support. We shall see.
