The U.S. Supreme Court, whose justices are pictured here on Oct. 8, 2010, are expected to rule on two same-sex marriage cases by June. Photo: AP

Justices Caution Not So Fast

It’s not often that a revolution winds up on the steps of the U.S. Supreme Court, but it seemed to happen this past week.  The nine justices heard two potentially significant cases on same sex marriage and while decorum was maintained inside the chamber, a lot of the action seemed to happening outside on the court steps.

Thousands of pro-gay marriage supporters spent two days chanting, holding signs and celebrating what seemed to be a national coming-out party of sorts for a civil rights movement that believes its time has come.  Not to be outdone, scores of gay marriage opponents also made their presence known with a march for traditional marriage that wound up right in front of the court.

There was a bit of nervousness watching the two groups come together on First St. in Washington, D.C., which just happens to run between the Supreme Court and the U.S. Capitol building.  But the demonstrations came off peacefully and the whole scene had a movie-like quality to it as thousands milled outside the court while the justices listened and questioned the lawyers inside, seemingly exactly as the framers of the U.S. Constitution had intended.

Two Cases, One Cause

By the end of June we will know where the court stands on gay marriage, at least for now. Of the two cases in question, the justices seemed to signal a clearer intention on how to deal with the 1996 federal law known as the Defense of Marriage Act, or DOMA.

DOMA defines marriage as solely between a man and a woman. It passed with overwhelming support in Congress and then was signed into law by President Bill Clinton.  DOMA denies federal benefits to gay couples married in states where same sex marriage is allowed, and from the tone of the questions from several justices it appears the high court may be poised to declare the law unconstitutional.  DOMA was passed at a time when even many Democrats were reluctant to support gay marriage, and so a victory over DOMA at the Supreme Court would energize gay rights activists.

But gay marriage proponents are really hoping for a clear-cut legal win in the other case before the high court, California’s ban on gay marriage known as Proposition 8.  Proposition 8 was approved by California voters in 2008, but later struck down by lower courts.  Gay rights activists are hoping the Supreme Court will seize the moment and declare Proposition 8 unconstitutional and in the process set a standard that would prevent other states from either continuing or establishing bans on same-sex marriage.

Reluctant Justices

Justice Anthony Kennedy has sometimes been the ‘swing voter’ on the Supreme Court, tipping cases one way or the other with his decisions. Photo: AP

But from the tone off the oral arguments in the California case, it appears several of the justices are looking for a way out of making a sweeping ruling on gay marriage, at least in the context of this particular case.  There is a lot of attention on Justice Anthony Kennedy in connection with both gay marriage cases.   Gay rights proponents regard Kennedy as sympathetic based on his record in previous cases.  But during oral arguments in the Proposition 8 case, Kennedy wondered aloud whether the high court should have even taken the case given that both the state of California and the Obama administration now oppose it.  Kennedy’s vote would seem crucial to any hope of a sweeping ruling for gay marriage emerging from the court on this case.

The court generally breaks down between a four-member conservative faction and a four-member liberal faction, with Kennedy often acting as the swing vote one way or the other.  Of course there are exceptions to this rule such as when Chief Justice John Roberts, a conservative appointee of President George W. Bush, broke with his fellow conservatives on the court last year and upheld the constitutionality of President Barack Obama’s signature health care law.  But Kennedy has long been seen as the key swing vote on the court who often provides the margin of victory for either the conservative or liberal factions and the gay marriage cases are likely to be no exception.

Shifting Public Mood

Public opinion polls show a remarkable shift in support of gay marriage in recent years and the thousands who descended on the Supreme Court this past week seemed to embody the sense of a civil rights movement gaining momentum.  It was as though you could actually feel the energy from the crowd trying to will the Supreme Court to come around to their point of view.  But plenty of legal scholars point out that the court often does not like to lead on divisive nationwide issues like gay marriage, and would prefer either the public or Congress to take the lead while the justices sit back and assess the legal implications.

Those favoring same-sex marriage protections are hoping their demonstrations in front of the court on Tuesday, March 26, will sway the justices in their rulings. Photo: AP

Plenty of people I talked to outside the court said the gay rights struggle is a case of the people leading the courts and the politicians.  In some way they hope that all their energy and commitment will somehow penetrate the hearing chamber have an impact on the justices inside.  It usually doesn’t work that way, though I will say this past week produced the largest crowds I have ever seen for Supreme Court oral arguments.

That won’t have much of an impact on the stalwart conservatives on the bench, but a lot of court watchers wonder about Chief Justice Roberts.  Because of Roberts’ ruling on the president’s health care law last year, it’s often suggested by court insiders that the chief justice has a special interest in the court’s reputation and historical standing.  But that doesn’t mean Roberts would be willing to get too far ahead of public opinion if he thought the issue of gay marriage needed to marinate longer in the sphere of public opinion, Congress and state legislatures.

Isolated But Aware

The justices like to have the public think they are immune from politics and public opinion but the fact is most of them are aware of what goes on outside the court and have some sense of where they see the court fitting into the constitutional framework.  Sometimes the court may be ahead of its time such as its 1954 decision in Brown v. Board of Education that struck down racial segregation in schools, even though the problem had persisted for decades.

Several of the justices said this week they worried about the court getting too far ahead of public opinion on same sex marriage. To many of the demonstrators gathered outside, the court was in dire need of being dragged to the conclusion that gay marriage should be proclaimed once and for all the law of the land.  They think the court is behind the times, not with it.

Chief Justice John Roberts, shown here in 2009, is said to be concerned about the Supreme Court’s legacy. Photo: AP

The Supreme Court is unique among Washington institutions.  The justices don’t hold news conferences and the oral arguments for their cases are not televised, though there are audio recordings that are released for the big cases.  The justices are grilled by senators during their confirmation hearings about everything from their legal beliefs to their backgrounds to their favorite authors.  But once they are confirmed, they are in effect unanswerable to the press and public and serve for life or until health issues force retirement.

Being in the court during oral arguments is like being thrown back in time to the 1800’s.  A strict code of decorum is observed to the point where I recall then-Chief Justice William Rehnquist asking a woman to remove her hat inside the courtroom during a case in the late 1990’s.  Many of the press seats have an obscured view of the bench so reporters have to rely on their hearing to know which justice is speaking at any given time.  Those in the know are often asked for help by others who attend cases infrequently.

Another surprise is that the lead attorneys on both sides of a given case are continuously interrupted by the justices asking questions and challenging their legal arguments.  You might think it rude at first until you realize the justices have already read all of the legal briefs in the case and have little interest in listening to attorneys verbalize what they have already submitted in writing.  So the justices pepper both sides with questions and hypothetical arguments to either punch holes in the case or discern new bits of reasoning that may inform their eventual decision.

Clues to the Outcome

Reporters love to guess how a justice will vote in a given case based on the questions he or she has asked.  But often the justices challenge both sides and it can be tricky to base a prediction on how the oral arguments have gone.

As far as the two gay marriage cases this past week go, most analysts see a real chance for a majority of the court to strike down the Defense of Marriage Act, which would open the door to gay couples becoming eligible for the same federal benefits that heterosexual couples now enjoy.

But the prediction game is much riskier for those trying to figure out what the court will do in the Proposition 8 case.  The justices have hinted at a range of possible outcomes there but the betting among many Supreme Court scholars is not to expect a sweeping ruling on gay marriage.

More likely what may come is a limited ruling that could knock down the Proposition 8 ban on same sex marriage but keep the impact limited to California alone.  We’ll know within three months.