What to Expect from the Supreme Court Regarding Marriage Equality

Although the Supreme Court is one of the most opaque institutions in the country, most observers expect that later this month it will decide in favor of marriage equality for same sex couples. I share that expectation. What is less clear is how big the majority will be or whether the ruling will be a broad sweeping statement or one based on one or more legal technicalities. These considerations are important because a weak majority or a majority decision based on a narrow technicality could lead to challenges to the ruling for years to come.

Most people can’t imagine justices Ginsberg, Sotomayor, Kagan and Breyer voting against marriage equality. (Last month, Justice Ginsberg married a gay couple and said as she pronounced the couple married, “…by the powers vested in me by the Constitution of the United States”.) Given his voting record thus far and his questions during oral argument many observers also have a strong sense that Justice Kennedy will vote for equality and produce a five to four majority.

It is certainly possible that one or more of the more conservative justices will find a reason to oppose marriage equality. Doing so is probably more difficult today than it was 10 years ago, however, and here are the obstacles conservative justices will have to overcome:

1. Years of socialization. The legal arguments in favor of marriage equality have been around for over a decade. As lower-level courts have reaffirmed equal rights the arguments in favor of equality have become increasingly ingrained in our social consciousness.

a. Family, friends and colleagues. By now, all the justices know someone who is gay and denying them a basic right to happiness must be a difficult prospect for them personally.

b. Overwhelming public opinion in favor of marriage equality. The latest polls show support for marriage equality reaching 65% or more. A Williams Institute study noted that in states that allow gay marriage the support grows.

2. State support. Today 37 states and the District of Columbia allow gay marriage. That is more than the 33 states that allowed interracial marriage at the time of Loving vs. Virginia.

3. Legacy and relevance of the Court. Justice Roberts is likely to be particularly concerned about his and the Court’s legacy and relevance. He has surprised people (even some justices) by his willingness to factor these issues into his reasoning in other cases, most notably his surprise vote on the Affordable Care Act.

4. GOP politics. There are two factors at play. First, and most mentioned, is that the field of GOP presidential hopefuls (and most other Republican politicians for that matter) would prefer that this problem simply went away. They are exhausted trying to contort themselves around being decent while not alienating their far-right base. The Court’s conservative justices can help. Second, the cries from some conservative politicians (Ted Cruz, Mike Huckabee) and commentators that the Supreme Court would be overstretching and doesn’t have the last say on constitutionality may help push a conservative justice or two into the majority just to make a point about the role of the Court and it’s rightful place among the three branches of government.

Conclusions for Executives:

For businesses, it’s prudent to plan for a decision that extends marriage equality throughout the U.S. This will help to clarify and simplify many HR and benefits policies pertaining to employees working in the U.S.

There could be significant domino effects for business policies and practices for some LGBT married employees being sent overseas to work, at least to countries that do not recognize same-sex marriage.

While successful challenges to a ruling in favor of marriage equality in the future would be extremely surprising, nothing is impossible. What I can guarantee is that if a positive ruling is challenged, businesses would be among the first stakeholder groups called on to defend LGBT rights, and the expectations from advocacy groups would be very high.