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Are There Even Four Votes For A Right To Same-Sex Marriage?


A commenter on the recent thread about Kennedy says probably not:

I see no reason why anyone would assume that Ginsburg, Breyer, Sotomayor and Kafan would be votes to affirm. Nothing in their records suggests it, as far as I can see. As for Ginsburg and Breyer, see Washington v Glucksberg. As for Kagan, see this blog on her nomination. Broad pronouncements of privacy and equal protection aren’t in their nature. Even in Lawrence everyone just joined Kennedy’s opinion, with nobody writing separately to endorse, say, Blackmun’s dissent in Bowers and the approach used there (which Kennedy, in the court’s opinion, never even discussed – he treated Steven’s dissent as if it were the principle one).

I do agree that there’s a non-trivial possibility that at least one member of the Court’s liberal wing would against a right to same-sex marriage; certainly, this is more likely than Alito, Scalia or Thomas (and, in my view, Roberts) voting to find one. However, I think this specific set of charges is too pessimistic:

  • The idea that “nothing in their records” suggests that the Court’s four more liberal members would find bans on same-sex marriage unconstitutional is transparently wrong.   Surely, to the extent that substantive due process cases are relevant at all, Lawrence is much more on point than Glucksberg, a very different kind of case.   Indeed, I’m well to the left of any current member of the Court and would vote to uphold Perry without a second thought, but I’ve never found Glucksberg‘s failure to find a constitutional right to die (as opposed to a right to refuse medical treatment) objectionable.
  • The fact that Kennedy was given the opinion in Lawrence isn’t proof of anything other than that Stevens knows what he’s doing; assigning opinions to lock in the shakiest vote is Supreme Court strategy 101.   And given how unusually (and gratifyingly) forceful Kennedy’s repudiation of Bowers was, there was no reason for liberals to add a superfluous concurrence.   I also don’t think there are any major substantive differences in the Stevens and Blackmun dissents in Bowers.
  • My critique of Kagan is simply that while we know she’s a “liberal” in some broad sense that’s not good enough in this political context.    I agree that Obama should have appointed someone we could be confident would vote to uphold Perry.  But even a generic liberal is more likely than not to vote to hold bans same-sex marriage unconstitutional.

I think the most likely outcome is that if Kennedy finds a constitutional right to same-sex marriage, there will be five votes.

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