Will same-sex momentum sway the Supreme Court?

Lyle Denniston looks at the process of how the Supreme Court could reach a decision on same-sex marriages, and if the justices could be influenced by recent news events.

"As happy couples and their loved ones celebrate and prepare for the first weddings in Delaware—following the win in Rhode Island just a few days ago—this milestone sends yet another message to the Supreme Court that it's time for marriage for all Americans. … We look forward to surging forward and continuing the momentum in Illinois and Minnesota later this month."

 – Marc Solomon, national campaign director of Freedom to Marry, an advocacy organization promoting same-sex marriage, in a press release May 7 after the Delaware legislature gave final approval to a marriage equality bill.  The governor quickly signed it into law.

If the Constitution takes at least part of its meaning from the way elected officials react to a high-profile public policy issue, the supporters of same-sex marriage have reason to be optimistic right now. In the space of less than a week, Rhode Island and then Delaware became the 10th and 11th states to allow gay marriage (along with Washington, D.C.). But is that a trend that the Supreme Court is ready to advance—or will choose to leave alone to see how it goes?

It has been exactly six weeks since the justices held hearings on two major test cases on the marriage question, and what that means is that draft opinions are now actively circulating behind the velvet curtains, and voting alliances are being shaped. The focus, at this point, is very much directed inwardly: to the record of the hearings, to the stacks of legal filings, and to the comments in notes or conversations among the justices and their law clerks.

By now, one justice has been assigned the task of composing an opinion for the court in each case (probably not the same justice for both), and the other members of the court are sending brief notes indicating whether they will join that opinion, whether they will or might dissent, whether they might write separately. They are, in fact, actually trying to influence the final shape of what could become the court's main opinion in each case—if a majority can come together on a main opinion.

And it is not difficult to imagine that one of the lines of conversation or of the written exchanges is whether the court needs to take a definite position on the constitutional questions at this point, because the legislatures are taking on the issue at an apparently increasing pace, and the trend is running strongly in favor of expanding marriage rights.

Even exchanges along that line, though, are part of the current process of trying to influence votes. An argument that the issue should be left to the political realm might cut either way. It could be used by those justices who, as of now, appear to be on the losing end because the preliminary voting pattern in one or both cases went against their view.

If the majority is moving toward embracing same-sex marriage, the political trend in that same direction is an argument for deciding the pending cases only on very narrow grounds, or for finding a way to bypass them. But if the majority is leaning against such marriages, the political trend in the opposite direction might counsel against a ruling that could signify an attempt to stifle the trend, to keep it from spreading to other states.

Such contentions might sound like political argument, but they are institutional claims. The use of judicial power is a strong instrument in a democratic society, and the court has a long tradition of trying to avoid major constitutional judgments if they are not really necessary. Although it has often been said that the court follows the election returns, a "bandwagon effect" seldom drives Supreme Court decisions on the meaning of the Constitution.

If the justices are reading the news about what is happening in the legislatures and in the political realm, and at least some of them almost certainly are, they will be aware that there is a trend, but that it is regionally limited, so far. It is not sweeping the South or the Southwest, and is largely concentrated along the Eastern Seaboard, with some potential for moving soon into the Upper Midwest. And the justices will know that, even with Rhode Island and Delaware putting the marriage equality total at 11 states, there still are 39 that have not joined in.

That information, too, might carry with it a note of caution. The majority of the court might not be ready to rule sweepingly, to turn the recent trend into a national constitutional command. A decision that the Constitution guarantees marriage equality would be binding nationwide and would, in one fell swoop, order 39 states to begin issuing marriage licenses.

Although there is obviously a great public fascination with what the court may do with the same-sex marriage issue, that does not guarantee that the justices are on the verge of a full-scale declaration for or against such marriages. The court has mechanisms available to it to dispose of the cases on less sweeping grounds, and leave the ultimate constitutional issue for a day in the future.

If the court does opt for a narrow or cautious approach, that would be a clear signal to the advocates on both sides that, for the time being, this is an issue for the political arena and the maneuvering would continue one state at a time.

In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects. Denniston is the advisor on constitutional literacy for the National Constitution Center. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court's work.