Did RGB Just Let Us Know How the Court Will Decide Gay Marriage?

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By Casey C. Sullivan, Esq. on May 22, 2015 11:02 AM

Voters in Ireland go to the polls today to vote on whether the Emerald Isle will legalize gay marriage. If the vote is successful, Ireland will be the first country to adopt marriage equality by popular referendum.

Meanwhile, gay marriage fans and foes alike in the United States are left waiting for the Supreme Court to decide whether the Constitution protects an individual's right to marry a same-sex partner. According to some, they might have a hint of how the Court will eventually rule, based on a figurative wink and nod Justice Ginsburg gave as she officiated a same-sex marriage last weekend.

I Now Pronounce You Clued In?

Listeners to the Supreme Court's oral arguments in Obergefell v. Hodges, the Supreme Court case on gay marriage, might have noticed a little legal oddity about federal judges and marriage. According to Justice Breyer, federal judges in New York are not allowed to be recognized marriage officiants. That's not the case in D.C., however, where the well-connected can call upon the highest judges in the land to preside over their marriage. That's right: if you're can pull enough strings, you could have Antonin Scalia or Sonia Sotomayor ordering you to kiss the bride. Or groom.

When Michael Kahn and Charles Mitchem got married last weekend, their wedding was full of elite attendees from New York and D.C., not the least of whom was Justice Ginsburg, who presided over the wedding. According to The New York Times columnist Maureen Dowd, who was attending, when it came time to finish the ceremony:

With a sly look and special emphasis on the word "Constitution," Justice Ginsburg said that she was pronouncing the two men married by the powers vested in her by the Constitution of the United States.

Reading the Tea Leaves

Without much else to go on since the Court heard Obergefell a month ago, many Court prognosticators decided that emphasis was enough to go on: Ginsburg was trying to tell us something. But what? According to Dowd, the emphasis on "Constitution" could have been an indication of how the court as a whole will decide the case, or simply what RBG's own take will be. If it's the later, no one will be very surprised -- the Justice has long been supportive of gay and lesbian rights.

Ginsburg's winking cadence isn't the only time a Justice may have tipped their hand regarding an important case. When the Supreme Court refused to stay a federal judge's decision invalidating Alabama's same-sex marriage ban, Justice Thomas -- always a chatterbox -- penned a strong dissent, joined by Scalia, which said the refusal could be seen "as a signal of the Court's intended resolution" of the gay marriage debate.

In the mean time, the rest of us will simply wait 'til June, when the Court is expected to release its official opinion on the matter.

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