WASHINGTON — The 10th edition of the Supreme Court under Chief Justice John Roberts Jr. begins work Monday with the prospect of a monumental ruling for gay rights that could serve as a surprising legacy of an otherwise increasingly conservative court.
Whether the justices will decide that the Constitution protects the right of same-sex couples to marry dominates expectations of the coming term. Such a ruling would impart landmark status on a docket that so far lacks a blockbuster case.
And some say it would be a defining moment for a closely divided court that bears the chief justice’s name but is most heavily influenced by the justice in the middle: Anthony M. Kennedy, who has written the court’s most important decisions affording protection to gay Americans.
“If the court establishes a right to same-sex marriage … (it) will go down in history as one that was on the frontiers of establishing rights for gays and lesbians,” said David Strauss, a constitutional law scholar at the University of Chicago. “The rough idea would be that the Roberts court would be to the rights of gays and lesbians what the Warren court was on race issues.”
That would seem an unlikely outcome for a court that has moved to the right since Roberts joined it as chief justice nine years ago.
Along with his fellow George W. Bush nominee, Justice Samuel Alito Jr., Roberts has been part of a five-justice majority, including Kennedy, that has staked out conservative positions on abortion, affirmative action, campaign finance restrictions and government accommodation of religion. It is widely seen as solicitous of corporate interests.
Along with fresh questions, such as how to assess violent but perhaps hyperbolic threats made on Facebook, some of those divisive issues might return.
Last year, the justices were able to achieve comity by deciding narrowly on some of the controversies before them and leaving underlying ideological disagreements for future cases. The number of unanimous rulings jumped to heights not seen in decades.
But the seams showed in a number of those pieced-together rulings.
“It is a mistake to think that the court has discovered consensus,” said Erwin Chemerinsky, dean of the law school at the University of California at Irvine. “Justice Antonin Scalia is just as conservative and Justice Ruth Bader Ginsburg is just as liberal as ever.”
It was a polarized court that only 15 months ago that set the stage for what could be the ultimate decision on same-sex marriage.
Kennedy joined the liberals and wrote the majority opinion in U.S. vs. Windsor, striking down part of the Defense of Marriage Act, which denied federal recognition of same-sex marriages performed where they were legal and defined marriage as only between a man and a woman.
While the decision left open the question of whether states may make such definitions, Kennedy’s reasoning convinced federal judges across the country that the next step was to find state prohibitions unconstitutional.
Same-sex couples can marry in 19 states, including Maryland, and the District of Columbia. Since Windsor, judges have ruled in favor of same-sex marriage to some degree in 16 states, and three appeals courts have found a constitutional right.
Paul Clement, who defended DOMA on behalf of the House GOP leadership, said lower courts reading Windsor concluded that “it’s hard to count to five votes for upholding these laws.”
The 10th U.S. Circuit Court of Appeals in Denver, ruling on laws in Utah and Oklahoma, and the 4th U.S. Circuit Court of Appeals, reviewing Virginia’s law, agreed that marriage is a fundamental right that cannot be denied to same-sex couples.
The 7th U.S. Circuit Court of Appeals, striking down prohibitions in Indiana and Wisconsin, said the laws discriminate on the basis of sexual orientation and the states’ justifications were irrational.
No appellate court has upheld a marriage prohibition, and only one federal district judge, in Louisiana, has done so. But more than 30 states and some of the nation’s biggest corporations have asked the court to settle the issue now.
Court experts say the justices will probably take time to decide which case — or cases — to accept. They could even wait until January to act and still have time for briefing, oral arguments and a decision by the end of June, when the new term ends.
It “depends on what Justice Kennedy decides to do,” said Irving Gornstein, director of the Georgetown Law Center’s Supreme Court Institute. “I agree with the conventional wisdom that the justice’s legacy consists of his (gay rights) decisions … and that he will be prepared to take the final step.”
