I have a lot of bad habits, and one is playing cards. But I also once drew five aces and still lost; since then, I don’t make predictions. So, I’m not going to predict what the Supreme Court will do with the same-sex marriage cases now that it has put them on this year’s docket. But if I were a bookie, I’d make marriage equality an odds-on favorite. It has been less than two years since United States v. Windsor, but it seems like a decade. Court after court has struck down bans on same-sex marriage; the “traditional marriage” camp seems exhausted and hopeless. The supreme court will hear a decision from the sixth circuit.
In that case, Judge Jeffrey Sutton’s opinion might generously be called listless. He was not able to muster a single serious argument why marriage equality was a bad thing; he was reduced to feebly protesting that it would be better for gay people themselves if they were to gain their rights through politics rather than law.
Prodded by the courts, the nation has already decided. For the Court to affirm Sutton’s opinion would seem almost akin to reversing Brown v. Board of Education.
That means Justice Anthony Kennedy’s must choose between the rights of gays and lesbians—an issue he cares about —and the rights of the states, another pet issue. . He might be tempted to split the baby by holding for the states on the “celebration” issue but for the challengers on “recognition.” That is, he might say, a state could refuse to perform marriages itself, but could not refuse those legally married out of state the benefits of marriage under state law.
But the temptation will be fleeting because that dog won’t hunt. In Kennedy’sWindsor opinion, he wrote that the federal government’s refusal to recognize legal same-sex marriages “humiliated” not only gay couples but their children. The children of couples who seek legal marriage in-state would be no less humiliated by their parents’ inability to marry than those of couples who married out of state. Once the issue becomes “the children,” we have probably entered the endgame.
That’s still not a prediction. This court has shown a tremendous capacity to surprise. But if anybody wants to put down money on the states in the new case, please look me up. I’ll be the guy with the coffee cup and the careful poker face.
Garrett Epps is a contributing writer for The Atlantic.