After Tuesday’s oral arguments before the Supreme Court in Obergefell v. Hodges, those who were confidently predicting victory for marriage equality are—if we’re being honest—trembling a bit. Based on the questions the justices asked, the outcome appears to be very much in doubt. And if the court were to decide that states aren’t constitutionally required to issue marriage licenses to same-sex couples, the result will be chaos. Marriages in many states could be legally unraveled, leading to consequences that would be sure to tie up couples and courts for years to come.
Before Tuesday, some observers had speculated that Chief Justice Roberts’ vote might be up for grabs, but his questioning left only a little of that hope alive. It seems Jeffrey Rosen was right in arguing, as he did a couple of weeks ago, that Roberts would remain committed to allowing the democratic process to play out in the states.
As usual, then, it is Justice Kennedy’s vote that matters—and even that vote, one previously perceived as likely, now appears uncertain. His questions in a case challenging California’s Proposition 8 a few years ago suggested a tension in his thinking. On the one hand, he was concerned about gay and lesbian couples and their children, expressing the view that denying them the right to marry would both demean them and “humiliate” their children. On the other hand, he worried that allowing such unions would be akin to jumping off a cliff, given the unknown consequences of doing so.
The Slate - Uh-Oh, Marriage Equality Isn’t Looking as Certain as We’d Thought