A constitutional law professor from Nebraska expects Justice Anthony Kennedy to be the deciding vote in the same-sex marriage case before the Supreme Court.
And Creighton University Professor Michael Fenner says the court could issue a two-prong ruling.
Fenner points out Kennedy has written all the opinions handed down by the United States Supreme Court the past dozen years on same-sex issues and has come down in favor of gay rights.
“But, this one’s different,” Fenner tells Kevin Thomas, host of Drive Time Lincoln on Nebraska Radio Network affiliate KLIN. “In the last opinion that he wrote he talked about how the federal Defense of Marriage Act (DOMA) interfered with state’s rights and he threw in a sentence about how the states have traditionally regulated and defined marriage.”
Fenner says he couldn’t tell by listening to the oral arguments on Tuesday which way Kennedy is leaning since Kennedy noted one man-one woman has been the definition of marriage for a millennia, yet he also mentioned the dignity of the individual and the impact on the adopted children of same-sex couples.
Fenner says Kennedy is likely the key vote, with Chief Justice John Roberts also a possible key vote in the case.
Though the case is often characterized as a case to determine whether states can define marriage or whether same-sex couples have a constitutional right to marriage, another issue is at play.
In fact, that other issue could hold sway, according to Fenner.
The court will also decide whether states that ban same-sex marriages have to recognize the marriages of same-sex couples performed in states where it is legal. In other words, can a same-sex couple married in Iowa seek a divorce in Nebraska after a move across the state line even if Nebraska prohibits same-sex marriages?
“The issue in the second case is only an issue if the Supreme Court upholds laws against same-sex marriage,” according to Fenner. “There’s some speculation that’s why they took the second case, because they were going to say that states can forbid same-sex marriage, but they have to honor a same-sex marriage performed in a state where it is legal.”
A ruling is expected at the end of June.