In U.S. Gay Marriage Case: How the Supreme Court Could Rule

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The possible outcomes in the gay marriage fight before the Supreme Court are both straightforward and legally complex.

The basic question in the case, Obergefell v. Hodges, is simply put: Are laws restricting marriage to a man and a woman constitutional under the 14th Amendment?

If the nation’s highest court rules that gay marriage bans are unconstitutional, same-sex marriage would become legal across the country. At the moment, it’s permitted in about three-dozen states and the District of Columbia.

If justices rule against gay marriage, that would leave in place state bans currently in effect. Such a ruling also wouldn’t affect the laws in more than a dozen states, such as New York Maine, Maryland and Washington, that legalized gay marriage through legislation, ballot initiatives or state-court rulings. The legality of gay marriage in other states whose bans were struck down by lower federal courts, such as Colorado and Virginia, might require more litigation to sort out, as Law Blog reported earlier.

Even if the court concludes there’s no constitutional right to same-sex marriage, it could hand the gay rights movement a partial victory. Under that scenario, the court could rule that states prohibiting gay marriage can keep their bans but must recognize same-sex unions performed elsewhere in the country.

Depending how justices frame their arguments, their ruling could have big legal implications beyond the fate of gay marriage.

“I think they’re probably going to rule for gay marriage. The question is how,” Vanderbilt Law School professor Brian T. Fitzpatrick told Law Blog. “They’re a range of options that get you the same answer.”

It’s possible that at least five justices could agree there’s a national right to same-marriage but disagrees on why. The 14th Amendment’s guarantees of equal protection and due process offer a myriad of “doctrinal pathways,” says Mr. Fitzpatrick.

One way justices could look at gay marriage is through the lens of equal protection.

They could, for instance, say that banning same-sex marriage is unconstitutional because it’s a form of sex discrimination. In states where gay marriage isn’t allowed, as the argument goes, the ability of a person to marry another person hinges on gender.

In this scenario, the court could say that bans cannot be justified under a higher level of judicial review that laws discriminating on the basis of gender are typically subjected to.

Sticking with equal protection, the court could also say that denying same-sex couples the right to marriage is sexual-orientation discrimination.

Such an argument could have the most sweeping impact on gay rights, says Mr. Fitzpatrick, by potentially subjecting any law that disadvantages gays to more intense judicial scrutiny. That could influence litigation in areas ranging from public employment, to adoption, to issues as local as public school policies restricting who can attendance.

There’s also the possibility the court could say that marriage is a fundamental right and as such, excluding gay couples from the institution violates their “substantive due process” rights. The right to marry isn’t mentioned in the Constitution. But the court has identified new rights before — often drawing objections from conservative justices — based on the 14th Amendment’s guarantee that no one’s “liberty” may be deprived without “due process of law.”

Articulating a “fundamental right” to marriage could “open the courthouse door to lots of other people who want non-traditional marriages,” said Mr. Fitzpatrick of Vanderbilt, raising the question of whether the same fundamental right extends to polygamous unions.

Alternatively, justices could conclude that gay marriage bans are motivated by an unconstitutional “animus” toward gays, echoing an argument that Justice Anthony Kennedy briefly made against the federal Defense of Marriage Act when the court overturned the federal law in 2013.

If the court comes down on the opposite side and says states are free to exclude same-sex couples from marriage, justices could still leave arguments on the table and suggest the matter could be revisited in the future, said University of Minnesota Law School professor Dale Carpenter.

Notre Dame Law School professor Gerard Bradley told Law Blog he expects a ruling against gay marriage would “track pretty closely” with the opinion handed down by the Sixth U.S. Circuit Court of Appeals in the same case now before the high court. That ruling by Judge Jeffrey Sutton “tracked the main line of reasoning in [U.S. v. Windsor], about state sovereignty over domestic-relations law,” said Mr. Bradley.