Court watchers: Opinion shift on gay marriage hard for justices to ignore

The dramatic shift in public opinion on same-sex marriage is likely to affect the Supreme Court’s historic rulings on the issue later this month, say legal scholars.

The justices often say they do not worry at all about politics or public opinion, and simply do what they believe the law compels them to.

But it will be hard if not impossible for them ignore the enormous transformation in opinion on same sex marriage, court watchers say, especially with two cases that offer them flexibility in how to rule.

“I have to think the justices — and especially the chief — are very cognizant of the shifting public opinion,” said Carl Tobias, a law professor at the University of Richmond.

The justices aren’t driven by polling the way elected lawmakers are, but they are often mindful of the court’s credibility. Chief Justice John Roberts, in particular, has shown himself to be an “institutionalist” who wants to protect the court’s legitimacy, Tobias said. That was clear in last year’s decision on ObamaCare.

The political pressures facing the court on same-sex marriage are blowing from several directions, however, making it uncertain exactly how the court will rule.

“I don’t think you can say confidently which way it cuts,” said Tom Goldstein, a Supreme Court attorney and the founder of SCOTUSBlog.

The court is considering two cases on same-sex marriage. One challenges the Defense of Marriage Act (DOMA), the federal law that bars same-sex couples from receiving federal benefits, even if they live in a state that recognizes their marriage. The other is a challenge to California's statewide ban on same-sex marriage, which voters approved in 2008.

The court is expected to rule by the end of the month on both cases, which have the potential to reshape marriage rights in the U.S., depending on how far the justices want to go.

Polls show the public has come around rapidly to embracing same-sex marriage. Support crossed the 50 percent line in a survey last week from the Pew Research Center for People and the Press.

And 12 states have legalized same-sex marriage — three of them just in the few months since the Supreme Court heard oral arguments in its marriage cases.

The political momentum is “speeding up like a freight train that’s not going to be slowed down,” said Goldstein.

The justices indicated during oral arguments that they are likely to strike down DOMA, possibly as an incursion on states' rights rather than on gay and lesbian couples. The court has several options in the California case. It could require every state to immediately recognize same-sex marriage, or it could decide the case on narrower grounds that would apply only to a handful of states, or only to California.

Most legal observers believe the court will land somewhere in the middle, effectively putting its stamp of approval on same-sex marriage without declaring a broad constitutional right.

On the one hand, any ruling against same-sex marriage would put the justices “on the wrong side of history,” Goldstein said — hardly a position institutional-minded justices want to see themselves.

In last week’s Pew poll, while 51 percent of voters said they support the right to same-sex marriage, a whopping 72 percent said they see it as inevitable.

A broad ruling declaring a constitutional right to same-sex marriage would follow the clear trend of public opinion. But because the states have moved so quickly to legalize same-sex marriage, the justices might also feel inclined to rule narrowly, leaving the issue largely in the hands of the elected branches.

“I do think it’s striking what’s happened — how quickly,” Tobias said. “I think the court has to be cognizant of that, and is. And I think that leads back to something narrow.”

Social conservatives have drawn parallels to Roe v. Wade, the 1973 decision that made abortion legal in every state. Some legal scholars have wondered in retrospect whether Roe was the right decision at the right time, saying it cut off a political debate that was trending toward broader access to abortion.

Even Justice Ruth Bader Ginsburg, one of the court’s traditionally liberal members, has questioned the rationale of Roe v. Wade. She said in a recent speech that the decision provided a “target” for abortion-rights foes — a comment some observers saw as a signal of her intentions in the marriage cases.

Goldstein and Tobias disputed that reading of Ginsburg’s comments. She has long taken issue with the legal rationale behind Roe, they said.

The basic analogy, though, could still apply. Several of the current justices, from both political parties, have said they are wary of judicial overreach, and even questioned explicitly whether they ought to interrupt the states’ process on marriage equality.

Advocates for marriage equality say the court ought to rule based solely on the law, but acknowledge that the political landscape will probably be a factor.

“The question is whether or not that’s what our Constitution requires, and that’s somewhat unrelated to how many states have done something,” said Brian Moulton, the legal director at the Human Rights Campaign.

Leaving the issue up to the states might not work for much longer, Moulton said. Thirty states have previously passed constitutional amendments that ban same-sex marriage, which would be far harder to undo than state laws.

But Justice Anthony Kennedy, who almost surely holds the key to both rulings, seemed during oral arguments to be searching for ways to avoid a broad ruling on fundamental constitutional questions.

It’s hard to find a good historical parallel for the sort of middle ground the court might take on same-sex marriage, Goldstein said. During the civil-rights era, the court was especially active and saw a need to lead. But Roberts has tried to shift away from an activist approach, at least on high-profile political cases.

The marriage cases present a challenge for the conservative chief justice. Roberts likely doesn’t want the court to be on the wrong side of history. He might also be able to help limit the reach of an ostensibly liberal decision, as he did last year with President Obama’s healthcare law.

At the same time, Roberts and other institutionally minded members of the court try to defer to Congress when possible, as a way of avoiding the label of “judicial activism.” Yet they’re being asked now to overturn DOMA, the federal law that prohibits same-sex couples from receiving federal benefits.

How the Roberts court handles the marriage cases could help determine “what judicial modesty ultimately means,” Goldstein said.