Same-Sex Marriage as a Make-Up Call

As you may have heard, the 1st Circuit in an opinion by Judge Boudin just struck down Section 3 of the Defense of Marriage Act (defining marriage for purpose of federal law solely as existing between a man and a woman). Good commentary from Dale Carpenter and Ruthann Robson. Of course, everyone (1st Circuit included) expects this to be resolved by the Supreme Court.

And that got me to thinking. The swing vote, as always, is Justice Kennedy (though DOMA raises important federalism issues that theoretically sway some conservative justices -- well, just color me dubious on that). While Justice Kennedy has distinguished himself as a relatively friendly Justice for LGBT litigants -- writing important majority opinions in Romer v. Evans and Lawrence v. Texas -- there is of course no guarantee how he would vote on the motherlode issue of same-sex marriage. However, it strikes me as relevant that these issues are coming to a head around the same time as the PPACA litigation.

Why? Well, the fact that he's got two major historical decisions coming his way in relatively close succession gives him the chance to "split the baby". Let's say he votes to strike down the Affordable Care Act. Liberals are outraged. A year later, a same-sex marriage case comes to the Court, and he strikes down that law too. Suddenly, he's a liberal hero again. The same-sex marriage opinion gives him a chance to cleanse the prior vote -- making up for it and assuring himself that he's "centrist" and "middle of the road". The known prospect of a liberal-friendly SSM decision gives him the cognitive space to make a conservative-friendly decision on the ACA (or perhaps vice versa).

Of course, this is all vague speculation at this point. But part of my read on Justice Kennedy is he likes to regress to the mean. An anti-ACA decision would represent a major slide to the right -- it would not surprise me if he quickly tried to counterbalance it with a counterweight on the left.