Justices_smI believe that we will look back on today’s arguments before the US Supreme Court as one of the landmark historic days for civil rights in of our time. Today, the Court will hear arguments in the case named Obergefell v. Hodges — the combined six cases pending on various aspects of the marriage equality questions. Arguments will center around two primary questions.  One, whether it is unconstitutional for states to ban same-sex marriage, or stated another way, whether there is a constitutional right to marry by same-sex couples that overrides the states that wish to ban such marriages. Then, if there is not a constitutional-level right to marry and states may pass laws banning such marriages if they choose, then must states recognize marriages lawfully performed in other states that do recognize same-sex marriage?

Speculation will abound today about what might happen. Lawyers and media folks will look for clues in the questions asked during the argument, the tone of voice, pregnant pauses, and even questions not asked — maybe something will signal the outcome. Of course, none of that is reliable or even predictive of the actual outcome. Yet, we almost can’t help but speculate.

Windsor case signals outcome

The Windsor case from two years ago gives some clues as to the possible outcome. In that case, the US Supreme Court held section three of the federal Defense of Marriage Act unconstitutional, thus extending federal benefits to same-sex couples. The Court extended the Constitutional Due Process of equal protection to same sex couples in handing down this ruling. That part of Windsor is what signals clues to the ruling in today’s Obergefell case. The same arguments for equal protection in Windsor should apply to Obergefell and apply to strike down the state bans on same-sex marriage.

Justices leanings signals outcome

Another signal as to the likely outcome of the Obergefell case is the split of the Justices from Windsor and the known or usual leanings of those Justices.  Typically, Justices Ginsberg, Breyer, Sotomayor, and Kagan lean to the liberal side and are expected to hold the marriage bans unconstitutional (so, yes and yes to the questions presented). On the other side, Justices Scalia, Thomas, and Alito are the conservatives and are expected to vote as they did in Windsor, upholding state’s rights to pass laws banning same-sex marriage without acknowledging the laws of states that recognize same-sex marriages (so, no and no to the questions presented).

Justices Kennedy and Roberts are the crucial swing votes in this case who will actually decide how the case comes out. Justice Kennedy, the Court’s most moderate Justice, voted with the liberal wing in Windsor and authored the majority’s opinion.  Kennedy wrote, “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.” Justice Kennedy’s legacy will show his favor for gay rights starting as early as 1996 when he wrote the Court’s opinion in Romer v. Evans invalidating a Colorado law against homosexual rights. He also authored the Court’s opinion in this historic Lawrence v. Texas case, which extended Due Process to homosexual people and banned laws criminalizing homosexual conduct. However, Justice Kennedy is also a state’s rights advocate. So, here, where state’s rights to pass laws is at direct odds with the Due Process rights of same-sex couples, Justice Kennedy could be conflicted. This may be the reason the questions are presented in two-parts, where an affirmative answer to the second question compromises the ability to acknowledge state’s rights but also the rights of same-sex couples.

Justice Roberts’ vote may also be on the table in Obergefell. In Windsor, Justice Roberts refused to sign off on the dissenting opinion and wrote his own dissent. He did not go so far as to agree with the conservative wing on the breadth of state’s rights, and seemed to leave a window open for the Constitution to trump state’s rights given the right set of facts before the Court. As Chief Justice, this Court will bear his name — known in history as the “Roberts Court”. So, his namesake and legacy will be known, at least in part, for this landmark decision. With the tide of public opinion so overwhelmingly changing on the issue of marriage equality, many doubt that Justice Roberts will want history to mark him as opposed to marriage equality, which may sway him to vote with the majority. On the other hand, as a state’s rights advocate, he may not go so far as to find a Constitutional deprivation of Due Process sufficient to override the state’s rights to pass laws. So, question two, requiring acknowledgement of other state’s lawful marriages — in other words, granting full faith and credit under the Constitution to lawful marriages — could be his compromise.


The ruling on Obergefell is expected in late June, but before the end of the US Supreme Court’s term.

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 30+ years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 30+ years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW for multiple years. She was named one of the Best Lawyers in America and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.