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Same-Sex Marriage Gets Its Big Day At The Supreme Court

The question of whether there is a constitutional right to same-sex marriage will finally have its day in court this week. On Tuesday, the Supreme Court will hear two and a half hours of oral argument in a quartet of cases on this subject. If the court reverses lower court rulings that upheld bans on same-sex marriage, it could mean that every state would have to honor such marriages performed in other states, and could require every state to permit them. A decision is expected this summer, most likely in late June. In this edition of Priors and Precedent, we’ll dig into some data and two sources of predictions for this landmark case. First, some background.

The Case

The petitioners are 12 couples and two widowers from states that bar same-sex marriage. A recent profile by NPR dubbed them “‘accidental activists,’ meaning they filed lawsuits not to further a cause but because of the way the bans affected their lives.”

The challenge to the bans, known as Obergefell v. Hodges, is actually four cases rolled into one.1 The court consolidated them and limited its consideration to these two questions:

  1. Does the 14th Amendment require a state to license a marriage between two people of the same sex?
  2. Does the 14th Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

The first is called the “marriage” question, the second the “recognition” question. The court will hear 90 minutes of argument on the former and an hour of argument on the latter. Civics refresher: The 14th Amendment guarantees certain rights under its “due process” and “equal protection” clauses.

If the answer to the first question is “yes,” then the answer to the second is irrelevant, of course.

Now a quick summary of the arguments that we can expect to hear.

On the recognition question, the petitioners draw parallels to the Defense of Marriage Act — a federal law, partially struck down by the court in 2013, that prevented the federal government from recognizing same-sex marriages. They argue that the refusal of states to recognize same-sex marriages is unconstitutional for much the same reason that DOMA was: It treats same-sex spouses as unequal to other married couples and departs from a “strong tradition” of respecting marriages that are licensed by other states. On the marriage question, the petitioners argue that excluding same-sex couples from marriage stigmatizes adults and “harms children financially, legally, socially and psychologically.” They argue that the bans further no state interest, and they say that marriage is a fundamental right.

The states defending their bans argue that this is all a states’ rights issue, not one for the judiciary, and that the cases should never have been heard. This decision, they say, should be left to the states and their people. They also argue that bans on same-sex marriage further procreative interests and that heterosexual marriage is historically “deeply rooted” in the country’s history.

Who Will Be Affected

The 13 states that still ban same-sex marriage — those states that would have to change their policies if the Supreme Court reverses the lower courts — are home to 89 million people, 67 million of whom are adults.

But that population has been shrinking. In October, my colleague Allison McCann charted the expansion of same-sex marriage in the U.S.


She found that just over half of Americans lived in states with same-sex marriage. Now, six months later, nearly 72 percent of the country’s population does.

Since 2003, the number of states that allow same-sex marriage has shot from zero up to 36 or 37, depending on how you count Alabama, which is currently facing conflicting rulings from state and federal courts. In addition, it is also legal in Washington, D.C., and though Missouri doesn’t permit same-sex marriages, it recognizes those performed in other states.

The cases being heard by the Supreme Court originated in Kentucky, Michigan, Ohio and Tennessee.

The Combatants

On the marriage question, Mary Bonauto, civil rights project director at Gay & Lesbian Advocates & Defenders, and U.S. Solicitor General Donald Verrilli, will argue for the petitioners. While Bonauto is a pioneering gay rights activist and MacArthur “genius” fellow, this is her first argument before the court. It is Verrilli’s 42nd. For the respondents, it’s John Bursch, a partner at Warner Norcross & Judd and special assistant attorney general of Michigan. Bursch has argued eight times before the court.

On the recognition question, Douglas Hallward-Driemeier, a partner at Ropes & Gray, will argue for the petitioners. He’s argued before the court 15 times before. For the respondents, it’s Joseph Whalen, associate solicitor general of Tennessee. This will be his first Supreme Court argument.

As Adam Liptak wrote in The New York Times, the respondents have had trouble getting backing from high-powered law firms, many of which won’t touch that side of the case. Even Bursch’s own firm, at which he is a partner, has no involvement.

The Predictions

Now, as usual, we’ll turn to the {Marshall}+ algorithm and the wisdom of the crowds at FantasySCOTUS to shed some predictive light on the case. There is fairly close agreement between the two. (This isn’t always the case.) Both foresee a reversal on both questions — a victory for same-sex marriage — with the algorithm being somewhat more confident than the crowd.


The usual swing vote in marquee ideological cases, Justice Anthony Kennedy, is viewed as having a roughly 75 percent chance of voting to reverse the lower courts, which would be very good news for same-sex marriage proponents. The liberal bloc — Justices Breyer, Ginsburg, Kagan and Sotomayor — are seen as even more likely to vote to reverse. And some of the predictions even see Chief Justice Roberts as a realistic reversal vote, especially on the recognition question.

If all the justices vote the way they are most likely to, the algorithm foresees a 7-2 reversal on both questions. The crowd foresees 5-4 and 6-3 reversals on the marriage and recognition questions, respectively. Either set of outcomes would be a triumph for same-sex marriage proponents.


  1. The other three cases are Tanco v. Haslam, DeBoer v. Snyder, and Bourke v. Beshear.

Oliver Roeder was a senior writer for FiveThirtyEight. He holds a Ph.D. in economics from the University of Texas at Austin, where he studied game theory and political competition.