Why the Supreme Court is Set to Make History on Gay Marriage

Jan 16, 2015

The fight for same-sex marriage rights in the United States has reached its final round. On Friday, the Supreme Court announced that it will hear arguments on whether state laws that ban these unions violate the constitution.

There’s not much question which way the decision will go: same-sex couples are going to prevail. The logic is plain:

In 2013, the court—the very same nine justices—struck down the Defense of Marriage Act. The plaintiff was a lesbian spouse whose marriage was recognized under New York law. The court ruled that the Constitution bars the federal government from treating traditional marriages differently from same-sex marriages in states that legalize both.

Read more: How Gay Marriage Won

Now the court will apply the same reasoning to state laws. Does the constitution allow states to discriminate when Congress cannot? Can the 14 states that still ban same-sex unions refuse to recognize marriages lawfully performed in other states?

In other words: suppose that two couples lawfully married in, say, Utah both move to Ohio. Can the authorities in Ohio refuse to recognize one of the marriages—the two-husband marriage—while recognizing the union of husband and wife?

Justice Anthony Kennedy, the deciding vote on same-sex marriage in 2013, left no doubt about his thinking in his majority opinion: “No legitimate purpose” exists to justify a law “to disparage and injure” same-sex couples. And that’s what these laws do, he concluded. DOMA “instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others.”

Lower federal courts pretty clearly agree on this point. Even some of the most conservative courts of appeal have ruled that state laws against same-sex marriage are in conflict with the 2013 ruling. Earlier this term, the Supreme Court declined to take up the issue, for the simple reason that the lower court judges were all arriving at the same decision. Where there was no dispute, the high court saw no need to step in.

But last fall, a panel of the 6th Circuit Court of Appeals—with jurisdiction over Ohio, Kentucky, Michigan and Tennessee—upheld state laws against same-sex marriages. With lower courts now in conflict, the Supremes have a role to play.

Given Kennedy’s long history as a defender of the dignity and rights of homosexuals, it defies belief to think that he has been sitting in Washington, watching couples in one state after another gain the freedom to wed, if he doesn’t in fact believe that freedom exists. For the Court to uphold the 6th Circuit opinion, Kennedy would have to join the court's conservatives in a ruling that would potentially invalidate thousands of marriages across the country.

Polls now show that a majority of Americans believe in the right to marry. The shift of public and judicial opinion on this issue in a single generation has been startling. But it is less controversial with each passing day.

Now the issue will be resolved once and for all.

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