It's the end of the term. As usual, the Supreme Court has left the decisions in some of the biggest and most controversial cases till the end. Let's take a quick look at four of them.
[I tried to whittle the number down to a more magical 3, but my wife and I just couldn't pick which 1 of the 4 to cut.]
Same-Sex Marriage (Obergefell v. Hodges)
Are state laws that prohibit same-sex marriage unconstitutional?
More precisely, do state laws that permit only opposite-sex marriages violate the federal Constitution's 14th Amendment which guarantees "equal protection" (i.e., prohibits invidious discrimination) and "due process" (i.e., prohibits laws that are fundamentally unfair and requires that laws be based on some legitimate government reason).
Since the Supreme Court decided Lawrence v. Texas in 2003, invalidating state laws that criminalized homosexual intimacy [and, thereby, emerging from the cave], the nation's views on gay rights and equality have changed with astonishing speed. Ten years later, in United States v. Windsor, this Supreme Court invalidated that part of DOMA ( the federal so-called "Defense of Marriage Act") that limited federal marital benefits to opposite-sex couples. The Court held that there simply was no legitimate government purpose for denying those same benefits to legally married same-sex couples.
At this point in our history, virtually every federal court--trial or appellate--to have addressed the issue has ruled that laws banning same-sex marriage are unconstitutional. And same-sex marriage--by judicial decision or legislation--is now legal in 37 states. Beyond that, polls show that a strong majority of Americans believe that same-sex marriage should be legal.
How far behind are the Justices willing to be?
How far out of touch are the Justices?
How tied to past discriminatory views--let's put the cards on the table: hostile and prejudiced--are the Justices that they would fail to see that anti-same-sex marriage laws violate equal protection and that they serve absolutely no serious government purpose?
Yes there's culture.
Yes, sincere religious belief.
But also yes, pure irrational and hateful bigotry.
And none of these are valid constitutional justifications for discriminatory laws.
Although the current Supreme Court is quite mediocre, even dreadful, it's quite unlikely that the Court will take a stance against history and against the most rudimentary sense of decency, fairness, and equality.
Certainly, the 4 liberals--Ginsberg, Breyer, Sotomayor, and Kagan--will vote for same-sex marriage. That means that only 1 vote--a single Justice--stands between constitutionally sanctioning same-sex marriage and returning to the cave.
[Sorry, but as a purely heterosexual male, I simply fail to see any serious reason whatsoever--except for historical, "savage" bigotry (to borrow from Reagan-appointed federal appeals Judge Richard Posner)--for sustaining bans on same-sex marriage.]
The deciding vote(s) will likely come from Justice Anthony Kennedy--the "homo lover," as he was referred to by some members of the Reagan administration who opposed his nomination to the Court. He has been consistent in his support of gay rights and equality.
And perhaps also from Chief Justice John Roberts. It is near inconceivable that a Supreme Court Chief Justice would elect to stand athwart the undeniable, intractable tide of history. Is that what he would want his legacy to be?
Of course, there are some Justices who view same-sex marriage as the fall of civilization. Perhaps even America's march straight to hell. And they will likely vote according to those beliefs.
We shall see. But it's reasonable to expect a 5-4 or 6-3 decision in favor of same-sex marriage.
Next up: the Obamacare subsidies case.