Come late June, we’ll all either be celebrating or lamenting the decision on same-sex marriage handed down by the U.S. Supreme Court.And it all hinges on one guy.
In April, the court debated, and appeared split on, a case that was consolidated from four separate cases in Kentucky, Michigan, Ohio and Tennessee. The case will determine whether or not the ability to marry someone of the same sex is a constitutional right applying nationwide, or if it’s to be decided by the states.
In Florida, where a federal judge ruled in favor of same-sex marriage in the face of relentless opposition from Attorney General Pam Bondi and hardline conservatives, a thumbs-down from the Supreme Court could complicate things. Since January, when Judge Robert Hinkle struck down a ban voters approved in 2008, thousands of couples have either married here or, if married elsewhere, finally have their marriages recognized here.
While same-sex couples in Florida might not see immediate impacts if the court were not to rule in their favor, their rights could see challenges from conservative groups emboldened by the decision.
But advocates find themselves in a holding pattern until June, and can do little at the moment but read the tea leaves cast by Justice Anthony Kennedy, the Supreme Court’s swing vote.
“I think we’re very much in a good space to bring a victory in June,” said Daniel Tilley, LGBT rights staff attorney for the American Civil Liberties Union’s Florida branch. “But there’s a lot of concern about some of the comments Justice Kennedy made at the argument.”
Chief among them, Tilley said at a recent ACLU event, was Kennedy’s mention of the “millenia” during which “traditional” marriage has existed.
“Of course we all know that marriage has never been traditional in any way,” Tilley said. “Marriage has radically changed over the past 2,000 years. It’s radically changed over the past 100 years.”
Kennedy has also expressed concern about the lack of “social science” on same-sex parenting. On the flip side, Tilley observes, the justice had plenty of positive things to say.
“He rejected the procreation arguments that have been floating up throughout the different states,” Tilley said. “He’s concerned for children. It was very clear to him that upholding a marriage ban would mean that it would harm the children, all children, [especially] the children of same-sex couples.”
Advocates were also reassured by the fact that Kennedy drew parallels between landmark civil rights cases — Brown v. Board of Education (outlawing segregation) and Loving v. Virginia (striking down bans on interracial marriage) — and landmark gay rights cases — Lawrence v. Texas (overturning anti-sodomy laws, a case for which Kennedy wrote the majority opinion) and the case at hand.
“So I’m feeling very good about where we’re going in this marriage case. Very good about where Justice Kennedy is on this case,” Tilley said. “We are very much looking forward to cementing these protections, permanently,
into law.”