‘Overwhelming evidence’ points to victory for same-sex couples, says UB expert

BUFFALO, N.Y. – The overwhelming evidence suggests the Supreme Court will grant same-sex couples the right to marry, according to University at Buffalo associate law professor Michael Boucai. 

For Boucai, it comes down to two main things: Justice Anthony M. Kennedy and children. 

The justices appeared divided along the usual conservative and liberal lines, Boucai said, with Justice Kennedy serving as the wild card who has broken the ranks with fellow conservatives in a string of gay rights cases over nearly 30 years. 

Justice Kennedy’s words during Tuesday’s oral arguments, coupled with his opinion in U.S. v. Windsor, which struck down part of the Defense of Marriage Act that banned federal benefits for same-sex couples married in states that allowed such unions, gave Boucai reason to believe he will side with the liberal justices.    

“I see little cause in today’s oral arguments to doubt that Justice Kennedy will rule in favor of same-sex marriage,” he said. “I would say to expect a lot to celebrate at the gay pride parades in late June.” 

While Justice Kennedy initially expressed concern the court was altering a definition of marriage that has endured for “millennia,” he emphasized the concept of dignity – a key word in the Windsor opinion, Boucai said. 

“That idea of robbing couples of the very dignity that the state bestowed upon them was central in Windsor,” he said. “The fact that Justice Kennedy was talking in that register sounded like he was strongly suggesting the same values he thought were at stake in Windsor are at stake here.” 

The other key moment of the oral arguments, Boucai said, was when the discussion turned to the relationship between same-sex marriage bans and children. Justice Kennedy observed that same-sex marriage bans only make it harder for gay and lesbian people to adopt children when their biological parents cannot raise them. He went on to observe that the existence of such children undermined any suggestion that only opposite-sex couples can bond meaningfully with children, Boucai said.

This line of argument recalls Justice Kennedy's concern for children's welfare in the Windsor case, Boucai said, where he explained that the Defense of Marriage Act humiliates tens of thousands of children.

“If Justice Kennedy believes that same-sex marriage bans harm kids, it seems to me that the game is up – that was the sweeper,” Boucai said. “In American politics the side that is able to convince the judge, or public, or whoever it’s going to be, that they are on the side of children is the side that wins.”