The question was never whether the U.S. Supreme Court would weigh in on marriage equality; the question was when the justices would resolve the dispute. Many expected the high court to take up the issue last fall, but it declined. Three appellate courts – the 4th, 7th, and 10th Circuits – had already cleared the way for same-sex marriages in much of the country, and soon after the high court took a pass, the 9th Circuit reached the same conclusion. With so much unanimity, the justices took a pass.
But when the 6th Circuit went the other way, the Supreme Court effectively had no choice but to intervene. It set the stage for today’s historic oral arguments. Emma Margolin reported overnight:
It will be history in the making in the nation’s capital Tuesday when the Supreme Court hears arguments in the case of Obergefell v. Hodges, which is widely expected to bring marriage equality to all 50 states. […]Before the high court now are two questions: Does the 14th Amendment require states to license a marriage between two people of the same sex, and does that same amendment require a state to recognize legally valid same-sex marriages performed elsewhere? If the answer to each ends up being “yes,” marriage equality will become law of the land. If the answer is “no,” the country’s remaining 14 same-sex marriage bans will survive, while the effort to reinstate fallen bans will revive.
Civil-rights supporters are cautiously optimistic about their chances. Remember, it was this same court that struck down the Defense of Marriage Act two years ago, effectively creating the legal tidal wave that washed away bans on same-sex marriage in most of the country.
The Obergefell v. Hodges case serves as the justices’ opportunity to finish the job and extend equal-marriage rights to Americans nationwide. Tom Goldstein, a lawyer who’s argued several times before the Supreme Court, told NBC News earlier this year, “It’s impossible to overstate the historic significance of a decision on such a fundamental piece of our social fabric.”
As a political matter, today’s oral arguments coincide with a burgeoning presidential campaign, and a field of Republican candidates who remain fiercely opposed to the popular social policy.
That said, many GOP officials privately hope that the justices side with marriage equality and remove the issue from the political battlefield altogether. As Nate Cohn explained this morning:
This year, if the Supreme Court rules that same-sex marriage bans are unconstitutional, the court could free Republicans from defending a policy that makes it far harder to confront their generational and demographic challenges.A court ruling for national same-sex marriage could sharpen the debate over the subject in the short term. But it would end the state-by-state battles over the issue, probably bringing the national political debate over same-sex marriage to a far quicker end.
Republicans know they’re on the wrong side – not just of history, but of public opinion – and recognize the dangers of spending the next year and a half presenting a discriminatory posture to a nation that’s already moved on. The Supreme Court, to this extent, could do the GOP field a favor by ending the fight.
Realistically, that wouldn’t happen right away, of course, and if civil-rights supporters prevail in this case, a variety of Republicans would no doubt talk tough about constitutional amendments and civil disobedience. But those voices would fail and their cause would wither.
That said, first things first. Oral arguments are expected to begin at 10 a.m. eastern.