WASHINGTON — Three U.S. states and three countries have approved same-sex unions just in the two months since the Supreme Court heard arguments over gay marriage, raising questions about how the developments might affect the justices’ consideration of the issue.
In particular, close observers on both sides of the gay marriage divide are wondering whether Justice Anthony Kennedy’s view could be decisive since he often has been the swing vote on the high court.
It is always possible that Justice Kennedy is reading the newspapers and is impressed with the progress,” said Michael Klarman, a Harvard University law professor and author of a recent book on the gay marriage fight.
In earlier cases on gay rights and the death penalty, Kennedy has cited the importance of changing practices, both nationally and around the world.
The court is expected to rule by late June in two cases involving same-sex marriage. One is a challenge to California’s voter-approved Proposition 8 that defines marriage as the union of a man and a woman. The other seeks to strike down a portion of the federal Defense of Marriage Act that denies to legally married same-sex couples a range of benefits that generally are available to married heterosexuals.
The justices took an initial vote in the days after hearing arguments in the two cases in late March. The senior justice on the winning side and the senior justice in dissent assigned opinions based on those votes. But while that first vote is important, it is not the end of the process; justices’ assessments of a case can shift subtly or, in some cases, dramatically.
In 1992, Kennedy initially drew the assignment to write a majority opinion for five justices allowing prayers at public school graduations. In the end, he ended up writing the opinion for a different five-justice majority striking down the graduation prayers. According to several accounts, Kennedy simply changed his mind during the writing process.
Current events also can find their way into opinions. Last year, Justice Antonin Scalia’s fiery dissent from a court ruling that watered down Arizona’s crackdown on immigration included a reference to comments President Barack Obama made at a news conference that took place between the argument in the case in April and the announcement of the decision in June.