Earlier this week, the Supreme Court heard oral arguments in two cases concerning same-sex marriage. On Tuesday, the Court heard arguments in Hollingsworth v. Perry, a challenge to California’s Proposition 8, which amended California’s State Constitution to define marriage as between one man and one woman. On Wednesday, it heard arguments in United States v. Windsor, a challenge to the Defense of Marriage Act, which defines marriage for all purposes under federal law as “only a legal union between one man and one woman as husband and wife.”
Since the conclusion of oral arguments, pundits have engaged in a prediction derby as to whether or not the Court will acknowledge that “[t]here is no legitimate, fact-based reason for denying same-sex couples the same recognition in law that is available to opposite-sex couples.” For example, Paul Hogarth at the Huffington Post declared that, “[b]ased on the Justices’ line of questioning . . . it appears that they will overrule Proposition 8 — but on narrow grounds that will only affect California.” John Bursch at SCOTUSblog, conversely, predicted that “the Court will uphold Proposition 8.” Similarly, Reuters noted that the Supreme Court was “poised to avoid same-sex marriage tide.”
Nearly every article that reads the Court’s “tea leaves,” however, acknowledges that it is foolhardy to predict outcomes by parsing Supreme Court oral argument transcripts. This is particularly true when the issue before the court is controversial. As Jeffrey Toobin remarked in his revealing book The Nine: Inside the Secret World of the Supreme Court, “[t]he 4-4-1 breakdown of the justices guarantees than on most any controversial issue, the majority will be tenuous.” Predicting that majority, therefore, is a fruitless endeavor.
Just ask every pundit who predicted the demise of the Affordable Care Act.
But while we may not know what the Justices will do in Hollingsworth or Windsor until June, we do know that public perception of the Supreme Court is at a historic low. According to the Pew Research Center poll released Monday, only 52% of Americans view the Court favorably, while 31% view it unfavorably. This is a dramatic change from the mid-1990s, when 77% of Americans viewed the Court favorably and only 18% viewed the Court unfavorably.
Hollingsworth and Windsor may not help the Court’s image. But these cases do provide the Court with the opportunity to be on the right side of history. Denying same-sex couples the fundamental right to marriage is the definition of unequal treatment under the law, and it is precisely the sort of treatment the Equal Protection Clause was designed to prevent. Moreover, there is no absolutely moral reason to discriminate against gay and lesbian couples.
To be sure, there are opportunities for the Court to avoid federalizing the redefinition of marriage. But both cases nevertheless represent a watershed moment at the Supreme Court. This is not just about a “label,” as Chief Justice Roberts suggested at oral argument on Tuesday. Rather, as attorney Theodore Olson pointed out, “[t]here are certain labels in this country that are very, very critical.” Marriage is one such label.
“A prime part of the history of our Constitution,” Justice Ginsburg wrote for the majority of the Court in United States v. Virginia, “is the story of the extension of constitutional rights and protections to people once ignored or excluded.” Regardless of how the Court rules, opposing same-sex marriage is becoming increasingly indefensible in the United States. Hollingsworth and Windsor, however, presents the high court with an opportunity to lead on this pivotal civil rights issue, and continue the task of forming a more perfect Union.