In what could be a potentially historic win for gay rights, the Supreme Court will hear two big cases this week--one on Proposition 8, California’s ban on gay marriage, and one on the federal Defense of Marriage Act, which defines as marriage as being between a man and a woman and thus denies federal benefits to same-sex couples.
The nine justices will hear arguments on Prop. 8 on Tuesday and the Defense of Marriage Act on Wednesday.
But as the nation’s highest court prepares to kick off a potentially transformative next few months, many are zeroing in on the Supreme Court justices, asking if they will support the tide of public opinion, which shows more and more are in favor of gay Americans having the right to wed.
The justices have until June to issue a decision.
In the meantime, here’s a rundown of the Supreme Court Justices and a look at how they might vote...
During her confirmation hearings, Sotomayor said she would keep a “completely open mind” on gay marriage. She also recently responded to a 6th grader’s letter asking for marriage equality. Sotomayor said she couldn’t comment on the issue but encouraged the girl to keep “dreaming big.” Nominated by President Obama, she’s one of the most liberal members of the court. During the confirmation process, though, critics pointed to her Catholic background, saying it may influence her decision on gay marriage.
All eyes will definitely be on Justice Kennedy, who is considered a potential swing vote and has voiced strong opinions on gay rights in the past. Kennedy, who was appointed by former President Reagan, wrote the majority opinion in 2003’s Lawrence v. Texas, which struck down a Texas law banning same-sex sodomy among consenting adults. He said the law targeted gays’ private actions and had no government purpose. Kennedy also wrote the majority opinion in Romer v. Evans, which found a Colorado law denying anti-discrimination protections to gays and lesbians unconstitutional.
The chief justice is conservative, but surprised many when he upheld Obama’s Affordable Care Act last summer. He may have some added pressure when it comes to gay rights: Roberts’ lesbian cousin, Jean Podrasky, told the Los Angeles Times that she’ll be in the audience when Roberts hears the case on Prop 8. “I believe he sees where the tide is going," she said. "I do trust him. I absolutely trust that he will go in a good direction.”
Thomas, of course, is one of the most conservative members on the court. He dissented in both Lawrence v. Texas and Romer v. Evans.
Alito, a Bush appointee, is also one of the most conservative members of the court. He wasn’t around for Lawrence v. Texas and Romer v. Evans, but has proven himself far right on social issues. As a lawyer in the Reagan administration, Alito once argued the Constitution does not protect the right to an abortion and expressed opposition to certain affirmative action programs.
Kagan, an Obama appointee, also has set no judicial precedent on gay rights, but when she served as dean of Harvard Law School, Kagan advocated on behalf of LGBT students. Kagan, in 2003, was against military recruitment on her campus because of the country’s policy against letting gay and lesbians serve their country openly.
The liberal justice is largely expected to vote in favor of gay rights. He was in the majority opinion in Romer v. Lawrence.
Ruth Bader Ginsburg
Ginsburg rightly predicted last year that the Supreme Court would tackle same-sex marriage. While she is one of the court’s liberal justices, some say she’s no sure bet. Ginsburg has previously said that the court got too ahead of public opinion on Roe vs. Wade and it may have been a better decision to get the issue get straightened out through the legislative process. Republican strategist Karl Rove on Sunday told ABC's "This Week" that he was "interested" in Ginsburg. "What we may see is a decision here that in essence has not a 5-4 decision, but a 6-3, 7-2, that says leave it up to the states."
Scalia has made his strict conservative views on gay marriage known. Last year, Scalia was asked by a gay student why he equates laws banning sodomy with those that prohibit bestiality and murder. “I don’t think it’s necessary, but I think it’s effective,” the justice said, adding legislative bodies can ban what they think is immoral.