Supreme Court likely to rule for same-sex marriage, says Emory expert

Jan. 16, 2015

Same-sex couples probably will be able to marry in all 50 states this year, according to Emory constitutional law expert Michael Perry.

The Supreme Court announced it will hear an appeal of a same-sex marriage case from the Sixth Circuit Court of Appeals, the only federal appeals court to rule in favor of same-sex marriage bans.

But “the fact that a majority — all but one — of the federal appellate courts that have ruled on the issue have ruled the same way, namely in favor of same-sex marriage, that in itself doesn’t tell you anything about how the Supreme Court is going to rule,” says Perry, Robert W. Woodruff Professor of Law and a senior fellow at Emory’s Center for the Study of Law and Religion.

“What does tell you how the Supreme Court is going to rule is what the justices said in the Windsor case,” he says.

On June 26, 2013, the Supreme Court issued a historic ruling in United States v. Windsor that required the federal government to recognize same-sex marriages. The decision struck down as unconstitutional Section 3 of the Defense of Marriage Act, which denied federal recognition to same-sex marriages even if they are legal in the states or other jurisdictions where they are performed.

But the court left intact sections of DOMA that allowed states to refuse to legally marry same-sex couples and to refuse to recognize same-sex marriages from other jurisdictions. Within a year, federal lawsuits were filed challenging all of the remaining state bans.

Prior to the Windsor decision, gay couples could marry in nine states — with three more states having legalized same-sex marriage, but their laws had not taken effect. Now, 18 months later, gay couples can marry in 36 states.

In the video above, Perry explains why he thinks that number will be 50 by the end of the year, and breaks down how he thinks each Supreme Court justice will vote.

Will Roberts be the surprise sixth vote?

Most court watchers predict that the Supreme Court will vote 5-4 to overturn state laws limiting marriage to opposite-sex couples. For several reasons, Emory Law's Timothy Holbrook thinks there's an outside chance that Chief Justice John Roberts may cast a surprise sixth vote to conclude that same-sex marriage bans are unconstitutional.

"First, the chief justice likely is concerned with his legacy, and clearly the trend in society is to allow same-sex marriage," says Holbrook, who served as co-counsel to National Football League players on a brief before the Supreme Court in Hollingsworth v. Perry, a marriage equality case. 

"Second, the way these cases have progressed suggest [Roberts] may take this step," Holbrook adds. "It only takes four justices, not a majority of five, to agree to hear a case. If the conservative justices wanted to stop all of the marriages happening across the country, then they should have had the votes. But the court did not take the case from Utah, which means there weren't four justices ready to step in and stop those marriages. 

"The chief justice must have decided not to take the Utah case, opening the door to thousands of marriages in states where courts had invalidated same-sex marriage bans," Holbrook explains. "If he votes against marriage equality now, he will throw these marriages into a state of uncertainty, requiring litigation as to whether those marriages remain valid."

Holbrook says it is likely that Roberts and perhaps Justice Anthony Kennedy were hoping the lower courts would agree that same-sex marriage bans were unconstitutional, making it unnecessary for the Supreme Court to step in. The decision by the Sixth Circuit Court of Appeals to uphold same-sex marriage bans, he says, removed that possibility, requiring the Supreme Court to take the case.