It sounds a little as if the U.S. Supreme Court will rule 5-to-4 in June that state bans on same-sex marriage violate the federal constitutional right to equal protection under the law.
It sounds a lot like it's up to the usual decider--Associate Justice Anthony Kennedy, who would break what appears for all the world to be a 4-4 tie.
By their questions during oral arguments Tuesday, and otherwise by their transparent and polarized ideology, we can say with near certainty that conservative justices John Roberts, Antonin Scalia, Samuel Alito and Clarence Thomas will vote to uphold the right of states to ban same-sex marriage. And we can say with similar confidence that liberal justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan will vote that such state bans are unconstitutional violations of equal treatment under the law.
That leaves the familiar figure of Kennedy, who was conservative enough to get nominated by Ronald Reagan in 1988, but moderate enough to win confirmation in a Democratic Senate.
Kennedy has been the deciding vote time and again, except, actually, on Obamacare. There he went against the health-care reform act, and Chief Justice Roberts, to the everlasting frustration of conservatives, stepped up to save it.
On gay-rights issues, Kennedy leans ... well, to gay rights.
In 2003, he wrote the majority opinion in a 6-to-3 ruling by which the Supreme Court declared unconstitutional--as an infringement on rights to privacy and liberty--a Texas law defining homosexual intercourse as illegal sodomy.
In 2013, he wrote the majority opinion in a 5-to-4 ruling by which the Supreme Court declared unconstitutional the portion of the federal Defense of Marriage Act that presumed to deny federal marital benefits to same-sex couples married in states that permitted and sanctioned their marriages.
It's on that case that Kennedy's personal precedent--tantamount, it seems, to court precedent--gets tricky.
In writing the majority ruling that said the federal government couldn't deny federal marital benefits to a same-sex couple married legally in a permitting state, he gave two reasons.
One was that the Supreme Court embraced and ratified the federalism concept that states should possess the latitude to make their own laws on the subject and, in so doing, have the federal government accede to their laws in extending any benefits of legal marital status.
But the other reason Kennedy cited--not so much a direct reason, actually, as an artful embellishment--was the imperative for those same-sex couples in legally sanctioning states to receive the same "dignity" of marital status as traditionally married couples receive in terms of federal recognition extended under the law.
Thus the rub. For the simpler yet broader question of whether to legalize same-sex marriage uniformly under the federal Constitution, meaning the issue in the current case, will Kennedy:
• Embrace his previous argument about state latitude, which would seem to mean states could outlaw same-sex marriage if they chose?
• Or embrace his previously stated principle of the right of same-sex couples to enjoy generally and uniformly the equal right to dignity that his majority opinion extended in the Defense of Marriage Act ruling to same-sex couples who were married legally in their states?
With all of the aforementioned context hanging as a low cloud, everyone was listening intently for signals from Kennedy's questioning during oral arguments Tuesday.
And he gave two, and of course they were contradictory.
He first asked about the wisdom of the court acting precipitously to redefine marriage after its having been defined on a biological basis for "millennia."
But then later, when attorneys were arguing that marriage exists to legitimize children in families and not for any right to dignity for the marrying couple, Kennedy piped in to say two things. One was that he thought dignity was what marriage was all about. The other was that dignity was needed for children adopted under sanction of law by same-sex couples in states not permitting same-sex marriage. Arkansas is such a state.
So which will it be? States' rights and tradition spanning millennia? Or equal rights to dignity for all same-sex couples and children living legally in their households?
Only Anthony Kennedy knows, if he indeed yet knows. But the slight leaning of informed speculation is that the dignity matter seemed to evoke more passion in him than federalism and tradition.
How epic, then, are presidential nominations to the Supreme Court and Senate confirmations thereof? Very.
Kennedy was a fallback nominee for Reagan after the man he really wanted, the ultra-conservative Robert Bork, got stymied by Senate Democrats.
Had Bork been confirmed, same-sex marriage bans by states would be safe today. Same-sex rights likely wouldn't have expanded nearly as much as they have.
Is it thus fair and appropriate for senators to oppose nominees for no reason other than ideology?
It's more than fair and appropriate. It's a moral obligation.
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John Brummett's column appears regularly in the Arkansas Democrat-Gazette. Email him at jbrummett@arkansasonline.com. Read his blog at brummett.arkansasonline.com, or his @johnbrummett Twitter feed.
Editorial on 05/03/2015