Supreme Court Justice Anthony Kennedy showed less support than expected for the argument in favor of holding that gay couples have a constitutional right to get married, according to Senator Mike Lee (R., Utah).
“I expected a little bit more sentiment from him in favor of same-sex marriage,” Lee, a former Supreme Court law clerk who attended oral arguments, tells National Review.
“[Kennedy] asked a number of questions that I think indicated a sincere and significant amount of concern for the authority of the states to make this decision, and for this decision to be made by the people and not by the courts,” he says.
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Kennedy is the likeliest swing voter, in Lee’s mind, though perhaps not the only one. The Tea Party senator predicts that the four Democratic-appointed justices “will join or author an opinion that would recognize some kind of constitutional right to same-sex marriage.” He says that Justice Samuel Alito, Justice Antonin Scalia, and Justice Clarence Thomas are solidly opposed to such a ruling.
“I’d add to that list, probably, Chief Justice [John] Roberts, although I’m a little bit less clear on that one,” Lee says.
If Roberts does stick with the other conservative justices, that would leave Kennedy as the swing vote. “One could even argue that he’s leaning slightly against where I thought the court was going to go, but it’s really hard to say,” Lee says.
There is some precedent for the double surprise of Roberts joining with the liberal justices as Kennedy sides with conservatives: That’s how the lawsuit challenging the constitutionality of Obamacare was resolved in 2012.
Lee still regards a holding in favor of gay marriage as the likeliest outcome, but says the oral arguments left him “a little bit less convinced that that’s how the court will turn out.”