Gay Marriage, SCOTUS, Supreme Court

Why The Same-Sex Marriage Decision Will Likely Come Out On June 26

Will June 26 become known as "Justice Anthony Kennedy Day" for the LGBT community?

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The other day on Twitter, I expressed the hope that the U.S. Supreme Court would issue its opinion in the same-sex marriage case, Obergefell v. Hodges, tomorrow. The opinion, which many legal experts expect to vindicate marriage equality nationwide, would arrive just in time for Pride Weekend in New York and San Francisco.

Responding to my tweet, J.P. Schnapper-Casteras of the LDF shared this observation:

[A]n Obergefell decision on Friday would coincide w/anniversary of Lawrence [v. Texas] (6/26/03) & [United States v.] Windsor (6/26/13). Coincidence?

My response (reflecting my assumption that the opinion will be written by Justice Anthony M. Kennedy, author of the Supreme Court’s major gay-rights precedents):

Oh wow — maybe that’s why they’re doing hand-downs on Friday — Justice Kennedy has always had a sense of history!

And as recently reported by the New York Times, AMK also has a gay law clerk this Term: Joshua Matz, co-author of a 2012 law review article titled “The Constitutional Inevitability of Same-Sex Marriage.” It wouldn’t be shocking if Matz pointed out to his boss — assuming Justice Kennedy hadn’t already noticed — that handing down Obergefell on June 26 would basically turn that day into Justice Anthony M. Kennedy Day for the LGBT community.

A June 26 hand-down of Obergefell would make that the day of decision for three of Justice Kennedy’s four Big Gay Cases — Lawrence, Windsor, and Obergefell (with Romer v. Evans, decided on May 20, 1996, as the only case not falling on June 26). And authorship of Obergefell would arguably make Justice Kennedy the single individual who has done more to advance gay rights in the United States than, well, anyone in history.

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I was emailing about this issue with a friend of mine, Craig Konnoth — a Sharswood Fellow and Lecturer in Law at Penn Law, and a leading young scholar of LGBT legal issues. After pointing out how the Court just added Friday as a hand-down day, Craig shared some observations that further strengthen the case for Obergefell arriving tomorrow:

Supreme Court decisions rarely come down on Fridays. Indeed, in the last 7 years, the Friday before the last decision of the term is announced has always been decision-free. Tomorrow will be the first Friday-before-end–of-Term, then, in the last 7 years, when a decision would be announced.

That by itself would not tell us much were it not for the date. Lawrence v. Texas, the landmark case that upheld rights to intimate same-sex conduct, was issued on June 26, 2003. Windsor v. United States, which struck down key portions of the Defense of Marriage Act, came down on June 26, 2013. (Many prominent commentators had suggested Windsor would come down June 27, a Thursday, which is a normal day for which the Court to hand down an opinion).

One could argue that the Court simply wants to get its decisions out quickly, and head out for a summer break. But we know that the Court still plans to issue decisions on Monday. So there is no reason to break with character and issue a Friday decision — except to celebrate an anniversary. On my read, what happened is that the majority found the decision ready before the Monday, and pushed to have it released on the anniversary of Lawrence and Windsor.

Hence, if I were a betting man, I would call in sick tomorrow morning. The marriage decision will come down between 10 and 10:30; the street parties will begin before 11.

Will tomorrow be a day of celebration for the LGBT community? I’ll go on the record as making that prediction.

But I could be wrong. Tomorrow around 10 a.m., tune in to Above the Law, and follow ATL (@ATLblog) and me (@DavidLat) on Twitter, to find out.

UPDATE (5:30 p.m.): I recently celebrated a notable birthday — and perhaps there will be more to celebrate tomorrow. Readers, feel free to drop by the back room of The Black Door in Chelsea (127 West 26th Street), tomorrow between 9 p.m. and midnight, and raise a glass with me if you’re up for it.

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UPDATE (10:30 p.m.): A bit more about Justice Kennedy. He has a sense of history and also a sense of drama, so if any justice would be attentive to anniversaries, it would be AMK. Recall his famous (or infamous), somewhat self-dramatizing comment before handing down a 1992 abortion ruling: “Sometimes you don’t know if you’re Caesar about to cross the Rubicon or Captain Queeg cutting your own tow line.”

UPDATE (6/26/2015, 12:15 a.m.): On the other hand, here is what Eric Citron, a former SCOTUS clerk (to Justices O’Connor and Kagan), had to say earlier at SCOTUSblog:

We have gotten a HUGE number of questions about whether the Court is planning to release gay marriage tomorrow because it is a historic day for gay rights already. That is enormously unlikely, in my view. The main determinant of when a case comes out is when it is ready; the Court barely considers other factors at all. And these matters are largely under the control of the Chief’s office, and I think it would be genuinely surprising, given all the things the Court is working on right now, if this kind of coincidence was in mind. The intervening third cause of days in late June being a big day for gay rights is that days in late June are when big SCOTUS decisions come down. The coincidence could hold tomorrow, or maybe not.

But even if the decision on timing is ultimately up to Chief Justice Roberts, perhaps with input from the Reporter of Decisions, I can’t help thinking that the Chief would try to accommodate Justice Kennedy if AMK expressed a strong preference for June 26.

UPDATE (6/26/2015, 8:47 a.m.): Craig Konnoth is willing to take action based on his beliefs: he schlepped down to D.C. and fell in line at One First Street at around 4:30 a.m. in the hopes of making it into the courtroom. He got ticket #44, which should be enough to get him into court. Good luck, Craig!

UPDATE (6/26/2015, 10:15 a.m.): I am very happy to be vindicated as to timing. Here is my post about the Court’s 5-4 ruling in favor of marriage equality.

Justice Anthony Kennedy’s Tolerance Is Seen in His Sacramento Roots [New York Times]

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