It is widely expected that the Supreme Court of the United States will issue their opinion in the Obergefell case defining the rights of same-sex couples to marry on Friday, June 26, 2015. The Supreme Court rarely announces the date upon which it will issue an opinion in a case and there are never any leaks of that information. However, several clues are leading everyone to the conclusion that it will be Friday.
First, the Supreme Court usually issues opinions on Mondays. Toward the end of the term they add dates to issue additional opinions. Usually, additional opinions are released on Thursdays. Last week they announced an additional opinion issue date on Friday, June 26, 2015.
Second, it is likely that they will want to issue the Obergefell decision independently of any other decisions. There’s so much attention focused on this decision. It could be disruptive to have other opinions issued the same day.
Third, June 26 is a significant day in the history of LGBT rights in America. Twelve years ago on that date June 26, 2003, the US Supreme Court issued its opinion in Lawrence v. Texas. Authored by Justice Kennedy, Lawrence held unconstitutional the statutes that criminalized homosexual conduct. Ten years later, on June 26, 2013, the Supreme Court issued its opinion in U.S. v. Windsor. This case was significant for LGBT rights in America because it held a portion of the federal defense of marriage act unconstitutional. It made federal government benefits applicable to LGBT couples. Interestingly, the Windsor opinion was also authored by Justice Kennedy.
Most believe that Justice Kennedy will be the swing vote in deciding the Obergefell decision. Out of the nine justices, four are known to be liberal-leaning. Another four are known to be conservative-leaning. Justice Kennedy tends to be the moderate in the middle.
There are two questions that are before the Supreme Court in the Obergefell case. The first is whether LGBT couples should have the same right to marry as heterosexual couples, giving rise to a right of equal protection under the law. If Justice Kennedy sides with the four liberal justices in answering this question yes then the second question does not even matter.
If a majority of the justices vote “no” on question one then the court could consider question two. The second question is whether States must recognize gay marriages performed where they are lawful, even if unlawful in the state where the couple seeks recognition. Based on the tenor of the justices questions in oral argument it seems possible that one or two of the conservative block of justices could even agree to question two.
Most court watchers believe it is highly unlikely that the justices will answer questions one and two with a no.
And so the country waits for Friday, June 26, 2015. Most likely this will be another significant day in LGBT rights in America.