The Supreme Court is expected to hand down a ruling later this month that legalizes gay marriage in all 50 states, but liberal experts are expecting a narrow decision that avoids the issue of discrimination.
“If you look a the Supreme Courts’ doctrines, gay rights is a very easy question,” said Ian Millhiser, a senior fellow at the Center for American Progress. “What the Supreme Court has said is when a group has historically experienced the type of discrimination, which bears no relation to their ability to perform in society, they’re entitled to heightened protection under the Constitution and there really is no question that sexual orientation should fit that bill.”
Millhiser said he expects the high court to do what it’s historically done and “slow walk gay rights.”
“The court has resisted reaching the natural conclusion that gay people should be entitled to this heightened protection and I suspect they will continue to resist it in this case,” he said at a panel hosted by the Center for American Progress. “If that’s true that has profound implications for the future.”
In addition to the same-sex marriage case known as Obergefell v. Hodges, the liberal advocacy organization’s panel also discussed King v. Burwell, a case that threatens to gut Obamacare by invalidating subsidies that help millions of people buy insurance.
It also considered the Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., which could threaten protections under the Fair Housing Act of 1968 and make fighting discrimination in housing—and possibly all civil rights cases—far more challenging.
Lesbian, gay, bisexual and transgender people have seen more progress in court decisions than African Americans in respect to civil rights, said Roberta Kaplan, a partner at the lawfirm Paul, Weiss, Rifkind, Wharton & Garrison LLP.
The reason, she said, is the court is extremely hesitant to label people as racist.
In arguing the Windsor case, which ultimately struck down part of the Defense of Marriage Act (DOMA) in 2013 and required the federal government to recognize same-sex marriages, Kaplan said the justices asked if she was calling the huge number of senators who voted for DOMA homophobic.
“In dealing with that, whether it’s African American civil rights or gay civil rights, you kind of have to dance a bit,” she said. “The honest answer is yes, some of the people who voted for DOMA probably were homophobic at the time. On the other hand if you use that word or say that, it kind of creates a reaction you don’t want to have among the justices.”
That may be what's motivating the court, she said.
“It's the sense that they don’t want to label anyone a bad person or label anyone racist or prejudice,” she said.