By Sam Baker - 06/09/13 10:05 PM EDT
Both sides in the fight over same-sex marriage are bracing for a decision from the Supreme Court, the most high-profile of the cases justices are expected to rule on this summer.
Where last year brought an anxious waiting game in immediate, politically charged cases over ObamaCare and immigration, this year’s major rulings will center around broad questions of civil rights.
During oral arguments in March, the justices seemed to be looking for a middle ground that would advance the rights of same-sex couples while leaving the issue mostly to the states.
Justice Anthony Kennedy, traditionally the court’s swing justice, appeared particularly inclined to rule on narrow grounds, avoiding the question of whether the Constitution guarantees a right to same-sex marriage.
Justice Sonia Sotomayor, a more liberal justice, also seemed open to a more incremental approach that would let the states move at their own pace.
“If the issue is letting the states experiment and letting the society have more time to figure out its direction, why is taking a case now the answer?” Sotomayor said during oral arguments.
The public debate over same-sex marriage has almost entirely reversed course in the past decade. Anti-gay-marriage ballot initiatives helped drive conservatives to the polls in 2004, yet many states are now rapidly embracing expanded marriage rights.
Three states have legalized same-sex marriage just in the short time since the Supreme Court’s oral arguments. It’s now legal in 12 states.
The court is often hesitant to cut off democratic processes, and a narrow ruling in the marriage cases would likely advance gay rights to some extent without forcing every state to recognize same-sex marriage right away.
Justice Ruth Bader Ginsburg recently said narrower rulings are sometimes better than sweeping proclamations.
She said the Supreme Court’s decision in Roe v. Wade, the historic case that legalized abortion in all 50 states, provided a “target” for abortion-rights opponents by interrupting a cultural shift that was trending toward broader access.
“The court can put its stamp of approval on the side of change and let that change develop in the political process,” Ginsburg said last month.
Social conservatives have drawn the same analogy to Roe v. Wade as they have urged the high court to avoid a broad ruling in favor of same-sex marriage.
Although social conservatives would ideally like the court to rule against same-sex marriage in both cases, that’s not seen as a very likely outcome.
The court is weighing two laws on marriage rights — the federal Defense of Marriage Act, and California’s ban on same-sex marriage. Most legal observers believe DOMA will probably be struck down, but most likely as a federal overreach, rather than as a violation of gay couples’ fundamental rights.
The court also has several options to strike down California’s ban without invoking broad constitutional rights and thus requiring every state to recognize same-sex marriages.
The marriage rulings will likely be the last ones released before the justices leave town for summer vacations and teaching positions, although the specific timing is hard to predict.
The court doesn’t announce when specific decisions are coming, or even set a fixed end date by which all decisions will be released. But the last rulings, which are usually the most controversial, tend to come out at the end of June. (The court’s ruling on ObamaCare, for example, was released June 28.)
There are plenty of other controversial cases on tap for the next few weeks, which also raise significant questions about civil rights and social change.
The court is seen as likely to strike down a key part of the Voting Rights Act, despite — or perhaps because of — its broad bipartisan support in Congress.
The court heard oral arguments in February over the section of the Voting Rights Act that requires states with a history of racial discrimination to get “preclearance” from the federal government before changing their voting laws.
Congress reauthorized the requirement in 2006, but it has not changed the formula for preclearance requirements in decades. The court’s conservative members suggested that because Congress has not updated the formula, it is too blunt of an infringement on states’ authority.
Justice Antonin Scalia made waves during the arguments by invoking the Senate’s 98-0 vote to reauthorize the act in 2006. Although Scalia usually says he does not care about congressional intent, he suggested in this case that the law was only reauthorized because lawmakers were too timid to vote against it.
“I think it is very likely attributable to a phenomenon that is called perpetuation of racial entitlement,” Scalia said. “It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.”
The court is also yet to rule on a major affirmative action case. It will likely be the first of the major rulings released, and could come as soon as next week.
That suit involves a challenge to the University of Texas’s admissions program, which includes race as one of several factors in the admissions process. But the quirks of the school’s process could lead to a narrow ruling applicable only to Texas.
The court has agreed to hear a broader challenge to affirmative action in college admissions in its next term, which begins in October.