The U.S. Supreme Court will issue decisions this month that could change the fight for marriage equality for a generation or more.
The last scheduled session for the current Supreme Court term is June 24. At press time June 4, gay marriage supporters and opponents alike were anxiously watching the court for decisions that could impact marriage rights for same-sex couples in California and around the country.
Meanwhile, activists around the country are planning “Day of Decision” demonstrations, including a gathering scheduled for the corner of 10th Street and Piedmont Avenue in Atlanta.
“Regardless of what those decisions entail, this will be a historic date for the LGBT community and will have a great impact on the ongoing struggle for equality in Georgia and around the country,” reads an open letter to the LGBT community signed by leaders of eight local LGBT and LGBT-supportive organizations.
“Knowing that there will be those in the community who will want to gather together on that date to express our joy or our outrage,” leaders of the groups acknowledged that the corner of 10th and Piedmont has been the site of similar gathering in the past and committed to work with area business owners “to ensure that any spontaneous gathering is safe and accessible for all.
The letter was signed by representatives of Atlanta Pride, Georgia Equality, Lambda Legal, Congregation Bet Haverim, Gentle Spirit Christian Church, Love Under Fire, Saint Mark United Methodist Church and the Atlanta Sisters of Perpetual Indulgence.
The Supreme Court heard arguments in Hollingsworth v. Perry, a challenge to Proposition 8, the ballot measure that ended same-sex marriage in California, on March 26.
The next day, the court heard Windsor v. United States, a challenge to the Defense of Marriage Act, the 1996 law that denies federal marriage rights to same-sex couples.
Edith Windsor, now 83 years old, married her partner of more than four decades, Thea Spyer, in Canada in 2007. When Spyer died in 2009, Windsor was hit with an inheritance tax bill of more than $360,000, which she would not have owed if the government recognized her marriage.
Both cases could have broad impacts on same-sex marriage rights around the country, or end in narrow rulings or even significant losses.
Based on analysis of the questioning during oral arguments, many court observers think it is more likely that the court will strike down the Defense of Marriage Act in the Windsor case — which could require the federal government to recognize legal same-sex marriages — than that the justices will issue a broad ruling in the California case that would immediately allow gay couples to marry around the country.
There are nine Supreme Court justices, meaning it takes five votes to reach a decision.
Prior to the marriage cases, the most significant Supreme Court decision on gay rights — the 2003 ruling in Lawrence v. Texas that struck down sodomy laws — was decided on a 6-3 vote.
Romer v. Evans, the 1996 ruling that overturned Colorado’s Amendment 2, a ballot measure that prevented gay people from being recognized as a protected class by any government entity, was also decided on a 6-3 vote.
Justice Anthony Kennedy could be a key vote among the current justices on the marriage equality cases. Statistically speaking, there’s a better chance he will vote with the four more liberal justices on the court in the upcoming marriage decisions than he will with the more conservative ones.
Out of 22 decisions issued thus far this session in which the nine-member court has split, the court’s four more liberal justices have stuck together on 14 (the count would be 15 but for one case in which one justice recused).
Kennedy, widely considered the unpredictable swing vote in the two marriage decisions pending, voted with those four liberal justices eight times – nine times if one counts the decision in which one of the liberals did not participate.
The four justices generally regarded as more liberal are Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Justice Breyer recused himself from one case.
By comparison, the three most conservative members stuck together in split decisions 10 times. Kennedy has voted with them only five times.
The three more conservative members are generally seen as Justices Antonin Scalia, Clarence Thomas and Samuel Alito.
Chief Justice John Roberts voted with the conservative trio nine times out of 10.
The tightest voting pair on the court these days is comprised of Justices Sotomayor and Kagan (also the two newest members of the court), voting similarly in 19 out of 22 cases.
The three female justices, all on the more liberal wing, have voted together 18 out of 22 times.
Thomas and Alito have voted the same in 17 out of 22 cases.
The surprise might be how many times the justices have all agreed. Out of a total of 46 decisions, they have agreed on a unanimous result 24 times.
Former Justice John Paul Stevens, 93, who retired from the high court three years ago after 35 years of service, recently offered his prediction for what the court will do on the two landmark marriage equality cases pending before it.
Stevens said he thinks the court will dismiss the Yes on 8 appeal of the Proposition 8 case out of California on procedural issues, and find the Defense of Marriage Act (DOMA) unconstitutional.
A dismissal of the Prop 8 case on procedural issues could allow gay couples to resume marrying in California, but would not have an immediate impact beyond the state.
Top photo: On the eve of the U.S. Supreme Court hearings on two marriage equality cases, LGBT activists gathered March 25 at the Georgia Capitol. Another gathering is expected on the day decisions are announced, this time at the corner of 10th and Piedmont. (Photo by Ryan Watkins)