On the morning of April 28, the U.S. Supreme Court heard arguments in Obergefell v. Hodges, which will determine whether (1) same-sex couples have a right to wed in all 50 states, and (2) whether states must recognize same-sex marriage performed in other states.
There will be much analysis and predicting and guessing, until the decision is issued in June. Since no one knows, it’s at best informed speculation.
This was interesting, from attorney Kevin Russell, via Scotusblog:
There is some reason to wonder whether the Chief might be angling for a compromise in which the states win the first question (i.e., they do not have to permit same-sex marriages to be performed in their states) but lose the second (i.e., they would have to recognize same-sex marriages performed in other states). It’s very hard to read the Chief, but he did ask questions in the second argument expressing some skepticism over the fact that states don’t, in fact, deny recognition to any marriage that does not conform with state law, except same-sex marriages. And, as I mentioned, Justice Scalia asked questions suggesting he might think there was a reason based in the text of Article 4 that would justify ruling for the couples on recognition but not the right to marry. So one could imagine a potential compromise that would effectively allow same sex couples to get married in states that allow it, have their marriages recognized elsewhere, but not have the Court issue a decision that has broad implications for other kinds of sexual orientation discrimination.
But Russell, who has argued 11 merits cases and served as counsel or co-counsel in nearly 50 merits cases before the Supreme Court, also observed:
Kennedy’s relative silence in the second argument may be good evidence that he intends to rule in favor of the couples on the main question — that is, it suggests he will vote to require states to allow same-sex marriages in their own states, which will effectively moot the question of whether they are required to recognize the same-sex marriages performed in other states.
Sexual Orientation Animus or Gender Discrimination?
[Chief Justice John] Roberts asked a question that neither side had pressed. If a woman wants to marry a man, she can. If a man wants to marry a man, he can’t. Why isn’t that sex discrimination, he wondered.
So perhaps he’s angling for a ruling based on sex discrimination, which might avoid fears of inadvertently opening up marriage to multiple partners. But a question that neither side had pressed?
It hinges on Justice Kennedy, and many remain optimistic he’ll side with the liberals in finding that the 14th Amendment’s equal-protection and due-process guarantees leave no justification for denying marital status to same-sex couples. The fun speculation starts with what if Kennedy is hesitant to go against, in his words, “This definition [that] has been with us for millennia”?
James Taranto, in a column at the Wall Street Journal otherwise fairly unsympathetic to marriage equality, picks up on Chief Justice Roberts query about a ruling based on, in his words, “a straightforward question of sexual discrimination.” Taranto suggests this would, in fact, take care of Justice Sam Alioto’s speculation about opening up marriage, on equal protection grounds, to incestuous and polygamous/polyamorous relationships, noting:
From the premise that men and women are equal before the law, it does not follow that a pair of siblings are the equivalent of a married couple, or that 1+1=4.
If Roberts were to place himself in a position where history would not judge him unkindly, that’s the way he would go.
[Added: Lawyer friends tell me that that this has to do with the level of equal-protection scrutiny applied during judicial review. The Supreme Court has held gender discrimination to intermediate scrutiny, a notch below the strict scrutiny standard applied to race. Also, by framing a decision in terms of gender discrimination, the court could avoid a ruling with broader implications about sexual orientation discrimination in employment, housing or other contexts.
Put simply, a ruling that overturns state bans against same-sex marriage because government may not discriminate due to animus regarding a couple’s sexual orientation would have wider reach than a decision that overturns state bans because government can’t discriminate on the basis of gender against individuals who want to marry someone of the same sex. For that reason, it’s not what some activists would prefer, and explains why the gender-discrimination argument wasn’t put before the court—and why some conservatives who see a decision legalizing same-sex marriage as inevitable are pushing for using gender discrimination as the basis. But frankly, if it gives us the freedom to marry, I can live with that.
Also, via the New York Times, Gender Bias Issue Could Tip Chief Justice Roberts Into Ruling for Gay Marriage. There’s speculation that behind closed doors Roberts may be offering his support to Kennedy and the liberals if they are willing to go along with a decision on narrower gender-discrimination grounds, because a 6-3 decision would be viewed as more legitimate than a 5-4 ruling.]
The Wall Street Journal‘s page 1 story picks up on the point where I began this post, that if, again, Justice Kennedy doesn’t swing as far as many expect him to, the likely compromise is to find states must recognize same-sex marriages performed elsewhere:
[Roberts] said it may be “a big step” to find that the 14th Amendment requires all states to perform same sex marriages, but the idea of requiring states to recognize out-of-state marriages under “domestic relations law is pretty straightforward.”
I’m dubious it will come to this “fall back” compromise, but that’s sure looking like the worst case scenario.