WASHINGTON — Over the weekend, Michigan attorney Dana Nessel took her twin 12-year-old sons on the public tour of the U.S. Supreme Court chambers to show them where she’ll be on Tuesday, the most important day of her legal career. Like a ballplayer surveying the field in an empty stadium days before the World Series, she explained to her boys the hallowed, emotional moments she anticipated.
Nessel is the family-law attorney who first took the case of a lesbian couple who sued the state for the right to adopt their four children as legal spouses. That case, along with cases from Ohio, Kentucky and Tennessee, will be argued on Tuesday in advance of what most scholars expect to be a landmark ruling that could make same-sex marriage legal coast to coast. Nessel won’t be the one speaking, but she’ll sit with the other lawyers and plaintiffs and soak up the moment.
“I’m very happy for her,” said Nessel’s son, Alex, who won’t be in the courtroom on Tuesday. “It’s history in the making, I guess. Still one more chapter to go.”
That’s the hope, anyway, for proponents of marriage equality. With 38 states already legally recognizing same-sex weddings — mostly because federal courts have forced them to — it appears the Supreme Court aims to resolve the matter and restore uniformity to the nation’s marriage laws. A ruling is expected in late June.
The justices will hear about two and a half hours of oral arguments during which attorneys and court-watchers will carefully monitor what sort of questions they ask. In particular, eyes and ears will be trained on conservative Justice Anthony Kennedy, whom many expect to be the fifth and decisive vote in favor requiring all states to recognize same-sex marriages.
Kennedy was, after all, the author of majority opinions in the 2003 case that struck down state sodomy statutes and the 2013 case that voided the federal Defense of Marriage Act and required the federal government to recognize same-sex marriages in states where it was legal. Kennedy’s language in that case, Windsor v. United States, has been cited by federal courts across the nation in subsequent decisions striking down state-level gay marriage bans.
The one thing that has seemed to hold Kennedy back before, many observers believe, is the fear that the Supreme Court could cause great cultural harm if it decided an issue like same-sex marriage before the public supported it. That shouldn’t be an issue any longer — the latest ABC News/Washington Post poll found a record 61 percent of Americans support marriage equality. In 2003, only 37 percent did, a strikingly fast reversal.
Yet University of Illinois constitutional law professor Robin Fretwell Wilson, who will not be in the courtroom, is most intrigued by whether Chief Justice John Roberts may lean towards affirming same-sex marriage, too.
“Watch the chief justice,” Wilson emailed from a study trip in Barcelona, Spain. “As the chief justice, if he is in the majority, he is the assigning justice, he gets to decide who writes the authoritative decision. And for a decision of this magnitude, about a topic that is such a deep part of our religious and cultural fabric as marriage is, the smart money is on Chief Justice Roberts to write the opinion for the majority.”
Cases such as this draw a wide range of interest. On Monday, hundreds of people were already gathering at the steps of the Supreme Court building, some bellowing Biblical condemnations against homosexuality through bullhorns and others huddled for the fourth consecutive night in line, hoping to be among the few members of the public to get in to watch the arguments.
“Cases like this only come around once in a generation,” said Wyatt Fore, a University of Michigan law student who spent his time in line since 10:30 p.m. Friday working on the speech he’ll give at his commencement next month. “It’s going to be very exciting to talk about the issues that we’ve only been reading about in books out loud. I mean, we never get to see that as law students.”
The National Organization for Marriage, which advocates limiting marriage to heterosexual couples, held a rally on Saturday that drew hundreds. But on Monday night, the vast majority of those in line to get into the hearings, as well as those hanging around, were in favor of same-sex marriage. The exceptions were the many men and women who were being paid by others to hold a spot in the line; they didn’t seem to care one way or the other.
Kassie Dulin, director of legal communications for the Liberty Institute in Dallas did care, which is why she struggled against a chilly wind to keep steady a large white balloon that read, “Protect Religions Liberty.” Dulin and her group are among those advocating so-called religious freedom bills to ensure that merchants aren’t forced to provide services to same-sex couples if doing so violates their faith.
“I’m really excited because I think the justices have a great opportunity here to allow the debate to continue” over whether same-sex marriage should be legal, she said. “If they make the decision to legalize or redefine marriage, that’s going cut off the debate.”
As often took place on Monday, same-sex marriage supporters tried to engage those who protested against it. Marshia Cadek, 16, of North Springfield, Virginia, calmly attempted to debate with David Miller, a Florida man carrying a bright yellow sign with a Biblical quote and shouting that homosexuality is unnatural. She gave up after a few exchanges, but said that she and her friends have had respectful conversations with anti-gay-marriage folks also waiting for days on line.
“People from both sides, we all get along,” Cadek said. “I’m just interested to see why people think the way they think.”
Arguments are expected to start at 10 a.m.