PI Original Ellyn Fortino Thursday June 4th, 2015, 1:58am

With SCOTUS Marriage Equality Ruling On the Horizon, Experts Analyze Possible Outcomes

Local legal experts offer their thoughts on the possible outcomes of the monumental same-sex marriage case that is before the U.S. Supreme Court.

All eyes are on the U.S. Supreme Court this month in anticipation of its ruling on a monumental case that could make same-sex marriage legal nationwide.

At issue is "Obergefell v. Hodges," a combination of four cases involving same-sex marriage bans in Ohio, Kentucky, Michigan, and Tennessee. Back in November, the U.S. Court of Appeals for the Sixth Circuit in Cincinnati upheld the gay marriage bans in the four aforementioned states, marking the first time a federal appeals court found such prohibitions to be constitutional.

Obergefell v. Hodges centers around two key questions: Whether states can ban same-sex marriages, and, if they can, whether states must recognize lawful gay marriages performed in other jurisdictions. The case boils down to whether the 14th Amendment, which guarantees due process and equal protection under the law, requires states to recognize same-sex marriages.

Thirty-six U.S. states, including Illinois, and the District of Columbia, have passed marriage equality legislation.

At least two local legal experts, along with many other observers, say the court appears poised to rule against the bans and make same-sex marriage the law of the land.

"I'm pretty comfortable thinking that it's going to at least be a 5-4 decision" in favor of a federal right to same-sex marriage, said Vincent Samar, adjunct professor at IIT Chicago-Kent College of Law and an adjunct professor of philosophy at Loyola University Chicago.

Andrew Koppelman, a John Paul Stevens professor of law and professor of political science at Northwestern University, added: "I think in all likelihood that the court is going to hold that states have to recognize same-sex marriages, regardless of where it took place."

The Alliance Defending Freedom, along with other proponents of same-sex marriage bans, argue that "nothing in the Constitution requires the redefinition of marriage." 

"As we approach decision day, we remain hopeful that the Supreme Court will follow what it has previously said - that states have the 'essential authority to define the marital relation' - and uphold the freedom of the people to affirm marriage as a man-woman union," Alliance Defending Freedom Senior Legal Counsel Jim Campbell said in a statement following April's oral arguments on Obergefell v. Hodges.

During the April 28 oral arguments on the case, the nine justices appeared split along conservative and liberal lines on the question of whether same-sex couples have a right to marry under the federal Constitution.

Both Koppelman and Samar predict the swing vote on the case will be Justice Anthony Kennedy.

"Most people read his opinion in the Windsor case [overturning the Defense of Marriage Act] a few years ago as being so sympathetic to the claims of same-sex couples that it's hard to imagine him coming out the other way," Koppelman said.

Samar said there is a possibility that Chief Justice John Roberts could join the majority, noting that during oral arguments he suggested that the case is more about gender, rather than sexual orientation, discrimination -- a theory some say could provide an opening for Roberts to side with marriage equality proponents. 

But Koppleman thinks it is unlikely that Roberts will vote in favor of legalizing same-sex marriage nationwide.

"Roberts is so conservative in his instincts more generally that it's hard to imagine him voting in favor of national recognition of same-sex marriage, so I expect that the actual swing vote will be Kennedy," he said.

Though Samar suspects the court to rule on the side of marriage equality, the big question is what standard it would use to reach such a decision.

One possibility, Samar said, is that the court could decide that marriage is a "fundamental right" and that there is no rational basis for the state bans.

Or, Samar said, the court could legalize same-sex marriage on the basis of gender or sexual orientation discrimination.

"The court could rule that marriage is a fundamental right, that equal protection applies and that either this is an example of gender discrimination -- in which case heightened scrutiny automatically applies, (meaning) the only time there can be discrimination is if the government can show an important reason for the discrimination -- or ideally they could say marriage is a fundamental right and sexual orientation, not gender, warrants heightened scrutiny," he said.

Gender discrimination cases are treated with heightened judicial scrutiny, but thus far the Supreme Court hasn't used that level of scrutiny for sexual orientation discrimination. 

A situation in which the court adopts heightened scrutiny for sexual discrimination would be "ideal," Samar argued, because that could have more far-reaching implications.

"With heightened scrutiny based on sexual orientation, rather than just gender, that would be more important, because that would mean other places where there's sexual orientation discrimination, (there would have to be) a strong reason to allow that, otherwise it's illegal," he explained.

There are several other possible outcomes of the case, including the Supreme Court siding with the states and upholding same-sex marriage bans. 

That type of ruling would not impact state laws allowing for marriage equality.

If the nation's high court upholds the bans, Koppelman said it would be a "strange outcome" if the court also ruled that the states with such bans had to recognize out-of-state gay marriages.

Such a decision, he said, would "discriminate in favor of people who could afford to travel, and really, make gay couples jump through pointless hoops in order to have their marriages recognized."

"You could, however, slap that with a label of a compromise, and that's, I think, the only attractive thing about it," he said.

The nation's high court is expected to issue its ruling on Obergefell v. Hodges later this month.

Meanwhile, a new Quinnipiac University poll released Monday showed that a majority of American voters, 56 percent, would back a Supreme Court decision granting same-sex couples the constitutional right to marry.

Of the 1,711 voters surveyed, only 38 percent said they would oppose such a Supreme Court ruling, while 5 percent were undecided. Among those polled, 70 percent of Democrats, 61 percent of Independents and 34 percent of Republicans said they would support a Supreme Court decision in favor of a federal right to same-sex marriage. Support for a pro-gay-marriage ruling was at 57 percent among women and 55 percent among men.

Also, the poll showed American voters supported requiring states to recognize same-sex marriages performed legally in other states by a 57 percent to 36 percent margin. Fifty-three percent of American voters said they opposed allowing states to ban same-sex marriage, compared to 40 percent who supported the idea.

The poll has a margin of error of plus or minus 2.4 percentage points.

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