The Supreme Court on Tuesday will hear arguments in what could be the consolidated cases that lead to the recognition of a right to same-sex marriage under the Fourteenth Amendment to the United States Constitution. I will be interviewed on the case on CNN around 9 am on Tuesday morning.
It was only two years ago that the Supreme Court struck down the denial of federal benefits to same-sex couples in United States v. Windsor. However, as in past cases, the Court struggled mightily to avoid recognizing a constitutional right to same-sex marriage.
It was only in 1986 in Bowers v Hardwick that Justice Lewis Powell told his clerk “I don’t believe I ever met a homosexual.” The clerk was Carter Cabell Chinnis, Jr., who was gay but Powell did not know it. In that disgraceful decision (which Powell added his vote as the fifth vote for the majority in upholding laws criminalizing homosexual relations), Chief Justice Warren Burger wrote “Condemnation of [homosexual] practices is firmly rooted in Judeao-Christian moral and ethical standards.”
Justice Anthony Kennedy may now be ready to cast the fifth vote to finally establish a constitutional right for same-sex marriage. The Court will hear two questions in Obergefell vs. Hodges (as well as three related cases from Kentucky, Michigan and Tennessee): 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? and 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
Oral argument will last 90 minutes on the first question and 60 minutes on the second question.
A decision is expected in June.