Update on SSM SCOTUS oral argument

[Torie]

Not much really from this source, with Kennedy being his usual schizo self on this issue, and Roberts pounding both sides, but no detail as to what he said. Btw, I have zero idea how I would rule on this issue if on SCOTUS, other than I would be most focused on the  issue of married gays finding their marriages not recognized when moving to another state, which interferes with the right to travel.

On the right to travel bit, the NYT did not discuss that point at all, and its spin suggests that perhaps the odds have tipped slightly against SSM being held a Constitutional right.  Roberts has a way of finding clever paths to where he wants to go that don't seem like Judicial activism, and so perhaps he will find the path I suggest of some appeal. It's a real policy problem when marriages come and go depending on where one moves to. It's intolerable really. That's the nub of the issue to me.

[DemPGH]

That the real issue is "who do you want to marry?" argued by Kagan/Sotomayor resonates with me. That's it as far as I'm concerned. I understand that Kennedy more or less ended up there in the later stages of his questioning. IDK, I've read a couple accounts of it today.

Roberts' argument (if it was an argument) that there's too much progress too soon for the SCOTUS to blanket rule for SSM tells me that the votes are there to do it, probably 5-4 for SSM, and that seems directed at Kennedy. The "millennia" (Appeal to Tradition fallacy) argument used by the anti-SSM side of this was to me laughable. We could turn that around and talk about the plethora of undemocratic attitudes that have been abandoned over the centuries, and it's just nonsense to apply that same argument to those issues (rise of democracy, rise of voting, decline of religion, etc.). I think we're at a point where the country sees SSM in those terms, and to allow a few states to ban it based on bigoted attitudes to me would be a travesty. 

[SteveRogers]

Roberts' argument (if it was an argument) that there's too much progress too soon for the SCOTUS to blanket rule for SSM tells me that the votes are there to do it, probably 5-4 for SSM, and that seems directed at Kennedy.

An argument which Kennedy seems to have had in mind when he pointed out several times today that about the same amount of time has passed between Lawrence v. Texas and this case as passed between Brown v. Board and Loving v. Virginia.

[muon2]

I was driving for 4 hours yesterday and I had the chance to hear a lot of the argument on the radio. It seemed to me that everyone but Thomas (who was silent) was inclined towards states recognition of other states SSM. Roberts and perhaps Alito seemed to use that consensus to see if there was a narrow brokered outcome with Kennedy, not forcing states to perform SSM but forcing them to recognize it. Perhaps that would follow naturally from Windsor. I couldn't tell from Kennedy's questions if he an interest in that line. He seemed to want to distinguish between a bar on state action against gays (Lawrence) and mandate on states to perform actions (SSM). Yet he also seemed to dislike much of the states' arguments.

[Torie]

I was driving for 4 hours yesterday and I had the chance to hear a lot of the argument on the radio. It seemed to me that everyone but Thomas (who was silent) was inclined towards states recognition of other states SSM. Roberts and perhaps Alito seemed to use that consensus to see if there was a narrow brokered outcome with Kennedy, not forcing states to perform SSM but forcing them to recognize it. Perhaps that would follow naturally from Windsor. I couldn't tell from Kennedy's questions if he an interest in that line. He seemed to want to distinguish between a bar on state action against gays (Lawrence) and mandate on states to perform actions (SSM). Yet he also seemed to dislike much of the states' arguments.

The take in reading the press today, is that Kennedy is toying with the idea of finding a right to SSM, and the Court seemed to consider the interstate issue to be likely moot, and asked few questions about it. But you listened to the oral argument, or much of it Mike, so I am going with your take. In any event, if out of state SSM marriages must be recognized (unless say a Vegas style shot gun wedding), then it won't take long for this issue to be resolved by the ballot box, if it is not done so by SCOTUS in June. Most states are not going to be comfortable having their new residents being SSM, while their other residents do not have such a right. The situation of having some states recognizing SSM, and not others, is and was always going to be an unstable and unsustainable one, that was and is destined to have a relatively short half life. Thank heavens!

[muon2]

One of the hypotheticals raised by Alito was the question of whether a constitutional requirement for SSM would imply that any two people could marry, and therefore siblings would have the same constitutional right. That raised a thought from me that I didn't hear asked in the context of recognition across state lines. Ginsburg noted that it exceedingly rare for non-SSM marriages to not be recognized by other states since Loving. What wasn't posed was the real example of first-cousin marriages. Half the states prohibit first-cousin marriages, yet generally recognize such couples married in other states. If SCOTUS goes down the path of allowing states to set their own policy, but mandating acceptance from other states, then I wonder if it won't end up like first-cousin marriages.

[Torie]

One of the hypotheticals raised by Alito was the question of whether a constitutional requirement for SSM would imply that any two people could marry, and therefore siblings would have the same constitutional right. That raised a thought from me that I didn't hear asked in the context of recognition across state lines. Ginsburg noted that it exceedingly rare for non-SSM marriages to not be recognized by other states since Loving. What wasn't posed was the real example of first-cousin marriages. Half the states prohibit first-cousin marriages, yet generally recognize such couples married in other states. If SCOTUS goes down the path of allowing states to set their own policy, but mandating acceptance from other states, then I wonder if it won't end up like first-cousin marriages.

The idea is that states would have to recognize SSM, and presumably first-cousin marriages, although if a blood relation, perhaps a state could show a compelling enough interest in not doing so. I got a chuckle when the tort lecturer in my bar review course said that NY allowed first cousin marriages (it allows any marriage that has one eight blood consanguinity), and that must be why he saw so many weird looking people in the NYC subway.   There certainly would be an adequate state interest in not recognize blood sibling marriages, but then no state does of course.

[muon2]

One of the hypotheticals raised by Alito was the question of whether a constitutional requirement for SSM would imply that any two people could marry, and therefore siblings would have the same constitutional right. That raised a thought from me that I didn't hear asked in the context of recognition across state lines. Ginsburg noted that it exceedingly rare for non-SSM marriages to not be recognized by other states since Loving. What wasn't posed was the real example of first-cousin marriages. Half the states prohibit first-cousin marriages, yet generally recognize such couples married in other states. If SCOTUS goes down the path of allowing states to set their own policy, but mandating acceptance from other states, then I wonder if it won't end up like first-cousin marriages.

The idea is that states would have to recognize SSM, and presumably first-cousin marriages, although if a blood relation, perhaps a state could show a compelling enough interest in not doing so. I got a chuckle when the tort lecturer in my bar review course said that NY allowed first cousin marriages (it allows any marriage that has one eight blood consanguinity), and that must be why he saw so many weird looking people in the NYC subway.   There certainly would be an adequate state interest in not recognize blood sibling marriages, but then no state does of course.

Yes, but my question was more to what the non-SSM states would do. The science says there is no reason to bar first-cousin marriages, but half the states do bar them yet they recognize those same marriages from other states. Why? Politically it's a difficult vote to lift the ban on first-cousin marriages. So if SCOTUS says that SSM isn't mandated yet SSMs must be recognized, I think it may still be a long time before some of the non-SSM states take action due to the political difficulty. I was thinking that was where there might be a parallel.

[True Federalist (진정한 연방 주의자)]

A Mexican like solution of no state being required to recognize SSMs consecrated in them but requiring states to recognize SSMs consecrated elsewhere is moderate heroish enough that Kennedy might sign on to it, especially if it gets a 7-2 or even an 8-1 decision to be the result.  However, I won't like it one bit because of the erosion of federalism such a decision would entail.  (It's also why I don't care for Windsor.)  It'd be far better in my opinion to simply go ahead and use the core of the reasoning of Windsor and simply declare state recognition of SSM to be a right.) Gets the same result and avoids weakening federalism more than it already has been.

[Torie]

One of the hypotheticals raised by Alito was the question of whether a constitutional requirement for SSM would imply that any two people could marry, and therefore siblings would have the same constitutional right. That raised a thought from me that I didn't hear asked in the context of recognition across state lines. Ginsburg noted that it exceedingly rare for non-SSM marriages to not be recognized by other states since Loving. What wasn't posed was the real example of first-cousin marriages. Half the states prohibit first-cousin marriages, yet generally recognize such couples married in other states. If SCOTUS goes down the path of allowing states to set their own policy, but mandating acceptance from other states, then I wonder if it won't end up like first-cousin marriages.

The idea is that states would have to recognize SSM, and presumably first-cousin marriages, although if a blood relation, perhaps a state could show a compelling enough interest in not doing so. I got a chuckle when the tort lecturer in my bar review course said that NY allowed first cousin marriages (it allows any marriage that has one eight blood consanguinity), and that must be why he saw so many weird looking people in the NYC subway.   There certainly would be an adequate state interest in not recognize blood sibling marriages, but then no state does of course.

Yes, but my question was more to what the non-SSM states would do. The science says there is no reason to bar first-cousin marriages, but half the states do bar them yet they recognize those same marriages from other states. Why? Politically it's a difficult vote to lift the ban on first-cousin marriages. So if SCOTUS says that SSM isn't mandated yet SSMs must be recognized, I think it may still be a long time before some of the non-SSM states take action due to the political difficulty. I was thinking that was where there might be a parallel.

I see. Somehow I suspect SSM will be a hotter button issue. And the issue over time will be just how tolerable is it to force residence to decamp for six months to get married elsewhere, or whatever the period is to establish residence. In the end, I suspect most states will throw in the towel pretty quickly. Nobody cares much about first cousin marriages.

[Torie]

This take of where SCOTUS is going, is that it is probably going to make SSM the law of the land because the line the opponents took that it is all about procreation, left the Justices cold. The article even suggests that there is no rational basis for the distinction, which seems surely wrong to me. There is a rational basis for just about any law. But if it is subjected to a higher standard of scrutiny, heightened scrutiny or strict scrutiny, it does seem that the die would be cast. Whether SCOTUS chooses to duck it all, and just force states to recognize out of state SSM, or go this route and find refusal to allow SSM as a denial of equal protection remains to be seen. The odds seem low to me however that the Court will leave the status quo in place. Most Pub politicians will be extremely relieved about it all. This issue is beginning to eat them alive as it were, and they need it to be put off the table.

[politicallefty]

I heard the oral arguments for both questions and my optimism isn't what is was going in. (To use a football analogy, I was expecting oral arguments to give the pro-marriage equality side a 30-point lead going into the unknown fourth quarter. Instead, I think we're looking at a 10-14-point lead for marriage equality nationwide.) Obviously, oral arguments aren't everything, but they are an important consideration.

Overall, I do think Justice Kennedy will join with the four liberals and strike down gay marriage bans as a violation of the Equal Protection Clause (which I think is most definitely the best way to resolve this). I still think Chief Justice Roberts is a wildcard. I don't think he'll sign on to any reasoning based on animus, but I do think he is a potential vote for the overall equal protection argument. Even if he's not in the majority opinion, I could see him taking up the sex discrimination argument, thus providing a sixth vote to reverse the Sixth Circuit (in other words, he'd basically be a somewhat better version of the O'Connor to this case's Lawrence).

[muon2]

This take of where SCOTUS is going, is that it is probably going to make SSM the law of the land because the line the opponents took that it is all about procreation, left the Justices cold. The article even suggests that there is no rational basis for the distinction, which seems surely wrong to me. There is a rational basis for just about any law. But if it is subjected to a higher standard of scrutiny, heightened scrutiny or strict scrutiny, it does seem that the die would be cast. Whether SCOTUS chooses to duck it all, and just force states to recognize out of state SSM, or go this route and find refusal to allow SSM as a denial of equal protection remains to be seen. The odds seem low to me however that the Court will leave the status quo in place. Most Pub politicians will be extremely relieved about it all. This issue is beginning to eat them alive as it were, and they need it to be put off the table.

I'm not sure I agree with the conclusion of the article.

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My sense was that the debate was not what the justices think marriage is, but whether the states can differ on what the primary reason for marriage is. It wasn't whether it's about commitment and dignity more than biology, but whether it can be about biology at all.

[Ebsy]

Didn't the procreation argument sort of die with Lawrence v. Kansas?

[Attorney General, LGC Speaker, and Former PPT Dwarven Dragon]

A Mexican like solution of no state being required to recognize SSMs consecrated in them but requiring states to recognize SSMs consecrated elsewhere is moderate heroish enough that Kennedy might sign on to it, especially if it gets a 7-2 or even an 8-1 decision to be the result.  However, I won't like it one bit because of the erosion of federalism such a decision would entail.  (It's also why I don't care for Windsor.)  It'd be far better in my opinion to simply go ahead and use the core of the reasoning of Windsor and simply declare state recognition of SSM to be a right.) Gets the same result and avoids weakening federalism more than it already has been.

7-2, 8-1, and 9-0 are all impossible. Alito, Scalia, and Thomas are not going to sign on to SSM in any way, shape, or form, period.

[True Federalist (진정한 연방 주의자)]

A Mexican like solution of no state being required to recognize SSMs consecrated in them but requiring states to recognize SSMs consecrated elsewhere is moderate heroish enough that Kennedy might sign on to it, especially if it gets a 7-2 or even an 8-1 decision to be the result.

7-2, 8-1, and 9-0 are all impossible. Alito, Scalia, and Thomas are not going to sign on to SSM in any way, shape, or form, period.

I agree they'll never vote to consider SSM to a right in and of itself. However, I could see Scalia or Alito possibly going for the quasi-Federalist argument if it keeps Kennedy from signing on to outright recognition of a such a right.  Roberts might be able to arrange that and he certainly has shown an interest in trying to avoid narrow decisions.  Even this is not likely, but I wouldn't say it's impossible.

[Del Tachi]

I still think we're going to get a 6-3 decision striking down all statewide SSM bans; Roberts joins to the liberals to be on the "right side" of history. 

[Skill and Chance]

I still think we're going to get a 6-3 decision striking down all statewide SSM bans; Roberts joins to the liberals to be on the "right side" of history. 

Based on Roberts' comments, the best hope for a 6-3 would be on pure sex discrimination grounds. This would also have the effect of isolated SSM from potential future gay rights cases and would probably avoid the religious tax exemptions issue entirely.

[Oswald Acted Alone, You Kook]

So it's in June when they make the decision, right?

[True Federalist (진정한 연방 주의자)]

So it's in June when they make the decision, right?

June is when their term ends and typically controversial cases won't be announced until the last week of the term. However, as soon they think they've reached a decision and there is nothing more to be gained from talking amongst themselves, they could issue their opinions, conceivably as early as Monday (their next scheduled date to issue decisions) tho I think mid-June is likelier.

With them having already staked out their major points in earlier cases, only if Kennedy is denied the chance to author yet another moderate hero opinion (which I really hope will be the case as he is probably the worst justice when it comes to trashing federalism in his quest to make rulings as narrow as possible) is there any need to wait until the very end.  Heck, he probably already wrote the first draft of his opinion before oral arguments were heard.

I'm hoping for Roberts to write the opinion with Kennedy submitting a miffed concurrence because he was denied the opportunity to make constitutional law even more of a moderate hero muddle. But that assumes that Roberts sides with the majority which is not certain.

[Slander and/or Libel]

SCOTUSblog said that the Roberts wouldn't really be able to moderate an opinion by joining it to make it 6-3, if it would already be 5-4 without him.

[True Federalist (진정한 연방 주의자)]

SCOTUSblog said that the Roberts wouldn't really be able to moderate an opinion by joining it to make it 6-3, if it would already be 5-4 without him.

If Roberts is on the majority, he gets to decide who writes the opinion. And while the result won't be changed if he writes it instead of Kennedy, the reasoning might, and it could only be for the better as far as I'm concerned.

[Slander and/or Libel]

But if he changes the reasoning enough that the other five differ from him significantly enough, then he's not really in the majority anymore, I think is the point. He can't change things terribly much by joining a bloc that is already a majority without him.

[True Federalist (진정한 연방 주의자)]

But if he changes the reasoning enough that the other five differ from him significantly enough, then he's not really in the majority anymore, I think is the point. He can't change things terribly much by joining a bloc that is already a majority without him.

Actually, he can. Assuming that the liberal four back a straightforward right to state recognition of SSM, then if Kennedy alone issued a narrower moderate hero opinion, that would become the controlling opinion. But if Roberts issues a different narrower opinion, then unless the liberal four explicitly back one and not the other there would be no controlling opinion which could be used as precedent in unrelated cases.

[Slander and/or Libel]

But if he changes the reasoning enough that the other five differ from him significantly enough, then he's not really in the majority anymore, I think is the point. He can't change things terribly much by joining a bloc that is already a majority without him.

Actually, he can. Assuming that the liberal four back a straightforward right to state recognition of SSM, then if Kennedy alone issued a narrower moderate hero opinion, that would become the controlling opinion. But if Roberts issues a different narrower opinion, then unless the liberal four explicitly back one and not the other there would be no controlling opinion which could be used as precedent in unrelated cases.

Seems like a big assumption, that the liberal bloc would just have no preference for one opinion over the other.