The Supreme Court tossed out a key part of the federal Defense of Marriage Act in 2013. Lower federal courts have since applied the reasoning of that decision to invalidate more than a dozen state-level bans on same-sex marriage, which is now legal in 37 states. Obergefell v. Hodges and two other cases now before the court may settle the question for the entire country.

Steve Sanders, associate professor of law in the IU Maurer School of Law in Bloomington, believes it is likely that a majority of the justices will hold that marriage equality is required by the U.S. Constitution.

“The real questions of interest are what legal rationale the court will apply and how the various justices might align themselves with the various constitutional theories that have been suggested for striking down these state bans,” Sanders said.

For example, Sanders said, Chief Justice John Roberts, who usually votes with the court’s conservatives, may be reluctant to join an anti-marriage-equality opinion that could be seen as being on the wrong side of history.

“The chief justice showed interest at oral argument in the idea that anti-gay-marriage laws might be a form of sex discrimination, an area where the Constitution provides relatively robust protection,” Sanders said. “He might also get on board with the idea that State A must recognize a same-sex marriage performed in State B, even if State A shouldn’t be required to license such marriages.”

Sanders’ work focuses on the Constitution’s Equal Protection Clause and on issues affecting same-sex couples and their families at the intersection of constitutional law, conflict of laws, federalism and family law. He also has extensive experience as a practicing lawyer briefing and arguing before courts, and he co-authored an amicus brief in support of marriage equality for the Human Rights Campaign. He can be reached at 734-904-2280 or [email protected].