On April 28, the U.S. Supreme Court heard oral arguments in Obergefell v. Hodges, the case that will directly answer two questions: If the constitution requires states to issue marriage licenses to same-sex couples, and if not, are states required to recognize marriages legally performed in other jurisdictions.
This case arrived at the court following the 6th Circuit's decision that said state bans on marriage equality are constitutional. On Oct. 6, 2014, the court refused to hear appeals from the 4th, 7th and 10th Circuits, all of which ruled in favor of marriage equality. The following day, the 9th Circuit which includes most of the western states ruled in favor of marriage equality. That, too, was appealed to the Supreme Court and they refused to hear that case as well.
Later, other states saw their bans fall, including Florida. The court let marriage go forward there too. The most telling point was on February 9th of this year, when the Court refused to stop marriages in Alabama. Alabama! That action came after the court had agreed to take up this issue in the current term. By allowing all of these states to go forward with marriage equality, 37 states and the District of Columbia have same-sex marriage, which is about 70 percent of the nation's population.
On April 28, we all went into the morning feeling like the court's previous actions made marriage equality a done deal. But early in the arguments, the all-important Justice Anthony Kennedy said marriage between a man and a woman has been the rule for millennia. That made me very concerned, coming from THE justice that is widely expected to be the deciding vote and who has authored other major cases that have set the stage for the expansion of rights we enjoy already. This concern however, relieved itself after he made comments stating the purpose of marriage is about dignity, and same-sex couples want that too. And to sort of undo the "millennia" comment, he noted the distance in years between Brown v. Board of Education and Loving v. Virginia is roughly the same time as Lawrence v. Texas, which he authored, and the current case. So he gets it!
Chief Justice Roberts, on the other hand, seemed uncomfortable with the idea of a constitutional right to marriage, however he did ask why this isn't a straightforward case of sex discrimination. CJ Roberts, in the Affordable Care Act case three years ago, said to not call it an individual mandate. Call it a tax! So letting an issue pass constitutional muster but under other terms is not something new for him. I wouldn't be shocked if he convinced or at least tried to convince the other five justices to see it his way. If he is in the majority, he can assign the opinion to himself where if he is in the minority, the senior justice of the majority gets to assign the opinion to the justice of their choice. Assuming the vote is five to four, that person is Justice Kennedy. Justices Scalia, Thomas and Alito are voting against us period. Take it to the bank! The other five, maybe six, will count.
I think they decided this issue last October. They certainly knew what they were doing when they opened up the valve as widely as they did. The Court typically doesn't get too far ahead of either public opinion or the laws in the majority of states. Today, 61 percent support the right to marry and 37 states plus Washington, D.C., allow marriage, although Alabama twisted it up for themselves. The deck is stacked in our favor and their actions since Oct. 6, 2014, positioned themselves to overrule fewer states instead of most states.
I believe victory is at hand. Whether they take this route or that route will be known when the opinion is released. Until then, come out, be open, be proud of who you are! THAT, is one thing that cannot be undone by any court!
Casey Cameron, 39, of Saint Elmo, Ill., is a part-time Chicagoan and long-time advocate for LGBT rights in Illinois.
