While Garden State Equality held its 6th annual Equality Walk in Asbury Park yesterday many participants were wondering about the U. S. Supreme Court’s ruling on same-sex marriage. due within days. As Amy Howe on SCOTUS Blog says, “Once again, it may all come down to Justice Kennedy.” In so many close decisions he is the tie-breaker.
Proponents for same-sex marriage use two key arguments. One is based on equal protection principles. The other argues that the constitution requires states to allow same-sex marriage as a fundamental constitutional liberty. Justice Scalia, an opponent, suggested that the court should leave the issue for “the people” to decide.
The court will rule on two main issues. The first is whether states must allow same-sex couples to marry. The second is whether states must recognize same-sex marriages performed elsewhere. The court is not considering abolishing gay marriage in states where it already exists, so there is no direct impact on New Jersey.
If the court rules that states must allow same-sex marriage the second issue becomes moot. If the court rules that states are not required to allow marriage equality, it still could decide that states must recognize a marriage from another state. The third alternative is for a ruling against both issues.
Almost ever gay rights victory at the Supreme Court has Justice Kennedy’s name on it. In the earlier Windsor case ruling Kennedy emphasized that “same-sex couples were entitled not to be demeaned or disparaged and the interests of their children demanded protection.” In oral arguments for the current case (Obergefell v. Hodges) he expressed doubt about requiring states to permit same-sex marriage – “The definition of marriage has been around for millennia;” “It’s very difficult for the Court to say we know better;” and “The court should define a fundamental right in its narrowest terms.” You can’t take these words and predict an outcome. The ruling is anyone’s guess.