Legal Commentary

A Few Thoughts on the Olson-Boies Same-Sex Marriage Case

By Orin Kerr

Like a lot of our readers, and my co-bloggers Dale and Jonathan, I?ve been following the Olson-Boies same-sex marriage case with great interest. I wanted to weigh in with three comments and a question.

1) I?m not so sure the Supreme Court will eventually take this case. A lot of people seem to think this case is ?destined? to go to the Supreme Court. It might, but I?m not so sure. Let?s assume that there are four Justices opposed to the result in the Ninth Circuit (whatever it is); four Justices in favor of it; and Justice Kennedy in the balance. Further assume that none of the eight decided Justices know at the cert stage what Justice Kennedy might do at the merits stage. Will there be four votes to agree to take the case? Maybe. But maybe not.

2) For those in favor of same-sex marriage, I?m not sure that a hypothetical Supreme Court decision concluding there is no right to same-sex marriage would do much to set back that cause. It seems to me that the cause of same-sex marriage has been advancing in recent years with the background understanding that federal courts are not likely to recognize such a right anytime soon. A decision rejecting the right would maintain that status quo. Some would argue that a decision rejecting the right in the near-term would delay or block a future decision coming out the other way. Whatever the Court does, however, my guess is that an early decision rejecting the right wouldn?t have a great deal of impact on later litigation.

3) If the Supreme Court does recognize a constitutional right to same-sex marriage in this case, I would expect that the next two Presidential elections will be won by the Republican candidate.

4) Finally, my question: Does anyone know if there is a video or complete transcript of Ted Olson?s 2003 Annual Federalist Society Supreme Court roundup, delivered just two weeks after Lawrence v. Texas? Will Baude was there and noted at the time some of the scorn Olson heaped on the Lawrence opinion:

General Olson speculated on whether the right to ?transcendent? liberty [discussed in Lawrence] would extend to riding a motorcycle without a helmet, smoking cigarettes, or driving SUVs. (He suspected that the answer was no, but couldn?t come up with a good reason why not).

The issues raised in Lawrence and the current case are different, of course, but it might be interesting to juxtapose Olson?s views then and now.

Full post as published by The Volokh Conspiracy on January 10, 2010 (boomark / email).