Two years ago, the Supreme Court struck down a federal law that defined marriage as only between a man and a woman, but that decision didn’t touch state laws that hold the same definition. This week, the Court finally began to hear oral arguments in a case that will once and for all decide whether states can ban same-sex marriage or whether they must give gay and lesbian couples the same right to marry as straight couples already have.
As you watch the Court wrangle with this momentous case, here’s what you need to know about the issue and the upcoming decision:
1) How quickly things have changed.
Eleven years ago, gay and lesbian couples couldn't get married anywhere in the country. That changed on May 17th, 2004, when Massachusetts became the first state to allow same-sex marriage.
Since then, the pace of change has been staggering, even more so in the last two years. Now, thanks to a combination of state legislative change and federal and state court decisions, nearly 72 percent of the population lives in one of the 37 states (plus the District of Columbia) that allow same-sex marriage.
For the country to change that broadly that quickly is truly remarkable. But more work needs to be done to get the entire country to change, which is why . . .
2) There are two different issues before the Supreme Court – licenses and out-of-state recognition.
Michigan, Ohio, Kentucky, and Tennessee have not been among the states that have changed in the past 11 years. Several same-sex couples have sued them as a result, and their cases are now before the Supreme Court.
Their cases raise two different issues: First, are states required by the Constitution to issue marriage licenses to same-sex couples? And second, does the Constitution require states to recognize out-of-state marriage licenses for same-sex couples that married elsewhere? It's hard to imagine the Supreme Court not deciding both issues the same way, but it's theoretically possible that the Court will decide that states do not have to issue marriage licenses but that they do have to recognize out-of-state licenses.
This would not be an ideal outcome for gay couples, but who doesn't like to travel? To see if this split is possible, we'll be watching Tuesday's argument with . . .
3) All eyes on Justice Kennedy.
Every major decision in favor of gay rights from the Supreme Court in its history has been written by Justice Anthony Kennedy. Although he has never gone so far as to say that anti-gay discrimination should be treated the same as race- or sex-based discrimination, he has been forceful in condemning laws that are based on nothing other than hatred of gays and lesbians or the belief that their lives are immoral.
Those past decisions have mentioned nothing about same-sex marriage, even though the issue was bubbling in American politics at the time, but they should be clear precedent for him to once again find in favor of gay rights and declare that the Constitution requires same-sex marriage everywhere.
And if being consistent with his past isn't enough for Justice Kennedy, thinking about his legacy should be. History books will not look kindly on him for abandoning gay rights at this crucial time, and he knows it. Which is why we may want to . . .
4) Keep our eyes on Chief Justice Roberts too.
This is far from a lock, especially since Chief Justice John Roberts has not been very kind to same-sex marriage in the past. When the Supreme Court struck down a United States law that restricted the definition of marriage for federal (not state) purposes, the Chief dissented, going out of his way to write an opinion explaining why the decision in that case did not necessarily mean that states had to permit marriage as well.
That doesn't bode well for his vote in this case, but it is possible that the Chief is also thinking about the Court's future and that he himself doesn't want to be on the wrong side of history. After all, as The Onion famously satirized back in 2011, we know future Americans are going to think it was "pretty embarrassing" that same-sex marriage was ever really an issue. Part of the Chief's job is thinking about the Court as an institution, and he may not want it to be seen as an embarrassment in the future.
However the Chief and Justice Kennedy feel, we'll know the outcome soon, because . . .
5) There will be a decision by the end of June.
In all but the rarest of situations, the Supreme Court decides all of its cases by the end of June. They've known this case was coming for years now, so there's no reason to think they'll delay the outcome at all.
Look for the big news before the calendar turns to July, when, as most people watching the Court believe will happen, we should be hearing wedding bells in every state in the country.
David S. Cohen is the author of Living in the Crosshairs: The Untold Stories of Anti-Abortion Terrorism. You can find him on Twitter @dsc250