Experts seek clues to how Supreme Court will rule next month

The court heard oral arguments in March in Hollingsworth v. Perry, involving California’s Proposition 8 ban, and U.S. v. Windsor, regarding the federal Defense of Marriage Act to prohibit recognition of marriages of same-sex couples for the purpose of federal benefits.

A decision on each case will almost certainly be issued before the court adjourns the last week in June.

Ginsburg first made her “too far too fast” remark concerning Roe in February of last year. At a forum of Columbia Law School, she said she thinks the Roe decision triggered the fierce public controversy that persists today over access to the abortion procedure.

“It’s not that the judgment was wrong,” said Ginsburg, “but it moved too far too fast.”

Ginsburg wasn’t on the Supreme Court in 1973, when the court issued the Roe decision. But, she noted, abortion law “was in flux across the country.” Unfettered right to abortion was available only in four states, and all other states limited to various degrees.

The Texas law, challenged in Roe, was “the most extreme in the nation,” she noted. It said a woman could not have an abortion unless it was necessary to save her life.

In a 7 to 2 decision, the Roe decision said laws criminalizing abortion “violate the due process clause of the 14th Amendment, which protects against state action the right to privacy, including a woman’s qualified right to terminate her pregnancy” in the first trimester Ginsburg suggested she thinks the Supreme Court should have limited its decision to just the Texas law, rather than the broadly reaching decision.

“Then,” she said, “it would have put its imprimatur on the side of change and continued in the direction in which [the country was] heading” on the right to abortion.

At the May 11 forum at the University of Chicago Law School, she said simply that the Roe decision was “too sweeping,” and that it gave opponents of access to abortion “a target to aim at relentlessly.”

“My criticism of Roe is that it seemed to have stopped the momentum that was on the side of change,” she said.

“The court can put its stamp of approval on the side of change and let that change develop in the political process.”

Incremental approach to marriage?

That was enough to set off another round of speculation: Could she be signaling an incremental approach to the two marriage cases?

“She knows we’re all going to immediately say, ‘What does this tell us on the marriage equality cases — that she’s going to rule in the narrowest way possible?” said Lawrence O’Donnell, host of MSNBC’s “The Last Word,” a political talk show.

In the editor’s blog of the New York Times May 13, Lincoln Kaplan wrote, “it’s not the court’s job to game out public response; it’s the court’s job to protect constitutional rights.”

Not everyone agrees.

Gay law professor William Eskridge Jr. was one of several essayists in the scotusblog.com symposium in 2011 to argue that the conflict over marriage for same-sex couples “ought not be resolved one way or the other [by the Supreme Court] until public preferences become more settled.”

“The Supreme Court ought to avoid a final judgment on the constitutionality of marriage law’s discrimination against lesbian and gay couples until the nation is substantially at rest on the issue,” wrote Eskridge. “Admittedly, that moment is coming more rapidly than anyone predicted, but that moment has not yet arrived.”

In fact, since Eskridge wrote that essay, seven states have approved marriage equality laws.

Narrow Prop. 8 ruling expected

But LGBT legal activists don’t seem too troubled that Ginsburg’s remarks are signaling a desire to cool the court’s decisions in the marriage cases to match the public’s temperature.

First, notes Nan Hunter, the likelihood the Supreme Court will rule on the merits of the Proposition 8 dispute “seem extremely small.”
Many Supreme Court observers have speculated the court will rule that Yes on 8 proponents did not have standing to appeal a federal district court ruling that struck down Proposition 8.

Such a ruling would likely allow same-sex couples to resume marrying in California, but it would not expand marriage rights around the country.

Second, notes Freedom to Marry Executive Director Evan Wolfson, recent polls indicate “Americans are ready for the Supreme Court to do its job and uphold the freedom to marry and equal protection under the law.”

A Gallup Poll conducted May 2-7 of 1,535 adults nationwide found 53 percent said marriage for same-sex couples should be recognized by the law as valid. Only 45 percent said “should not,” and three percent were unsure.

Third, said Kate Kendell, head of the National Center for Lesbian Rights, Justice Ginsburg said “nothing” during oral arguments that “suggested that she has any intention of ruling against” same-sex couples “based on concerns about Roe or anything else.”

And while Lambda Legal’s legal director Jon Davidson expressed frustration at Ginsburg’s remarks concerning Roe, he said the right to access to abortion and the right to a marriage license have significant differences.

“Roe dealt with certain restrictions on reproductive freedom, where the Court had to draw certain lines about precisely which abortion restrictions were constitutional and which were not and where there was little prior, on point Supreme Court precedent,” said Davidson.

“By contrast, the laws denying same-sex couples the right to marry do not involve such calibrated distinctions, and numerous cases have already ruled that the Constitution protects the fundamental right to marry and that discrimination based on sexual orientation cannot be based on moral grounds or a desire to treat gay people unequally.”