BUFFALO, N.Y. – The overwhelming evidence suggests the Supreme Court will grant same-sex couples the right to marry, according to University at Buffalo associate law professor Michael Boucai.
For Boucai, it comes down to two main things: Justice Anthony Kennedy and children.
The justices appeared divided along the usual conservative and liberal lines, Boucai said, with Justice Kennedy serving as the wild card who has broken the ranks with fellow conservatives in a string of gay rights cases over nearly 30 years.
Photo of Boucai: http://www.buffalo.edu/news/releases/2015/04/067.html
Boucai's expert bio: http://www.buffalo.edu/news/experts/michael-boucai.html
Justice Kennedy’s words during Tuesday’s oral arguments, coupled with his opinion in U.S. v. Windsor, which struck down part of the Defense of Marriage Act that banned federal benefits for same-sex couples married in states that allowed such unions, gave Boucai reason to believe he will side with the liberal justices.
“I see little cause in today’s oral arguments to doubt that Justice Kennedy will rule in favor of same-sex marriage,” he said. “I would say to expect a lot to celebrate at the gay pride parades in late June.”
While Justice Kennedy initially expressed concern the court was altering a definition of marriage that has endured for “millennia,” he emphasized the concept of dignity – a key word in the Windsor opinion, Boucai said.
“That idea of robbing couples of the very dignity that the state bestowed upon them was central in Windsor,” he said. “The fact that Justice Kennedy was talking in that register sounded like he was strongly suggesting the same values he thought were at stake in Windsor are at stake here.”
The other key moment of the oral arguments, Boucai said, was when Justice Kennedy stated that same-sex marriage bans harm children.
Justice Kennedy argues that if one truly believes marriage is about providing a stable environment for children, then all children being raised by same-sex couples should have that protection, as well.
“If Justice Kennedy believes that same-sex marriage bans harm kinds, it seems to me that the game is up – that was the sweeper,” Boucai said. “In American politics the side that is able to convince the judge, or public, or whoever it’s going to be, that they are on the side of children is the side that wins.”