Live blogs on the hearings: http://blogs.wsj.com/washwire/2015/...guments-at-supreme-court-tuesday/?mod=WSJBlog http://live.scotusblog.com/Event/Live_blog_Obergefell_v_Hodges Audio: http://www.supremecourt.gov/oral_arguments/audio/2014/14-556-q1 Link to transcript on Question #1: http://www.supremecourt.gov/oral_arguments/argument_transcripts/14-556q1_7l48.pdf I have will not have an opportunity to review the transcripts or audio until much later, maybe not even today. My sense though, based on the live blogs, is that Roberts is unlikely to join for a 6-3 ruling on the question of whether states must issue marriage licenses to same-sex couples. It will almost certainly be a 5-4 decision, whichever way it goes. It is clear that several of the justices, including Kennedy, have misgivings concerning the fast pace with which the concept of same-sex marriage has gained legal ground, with cutting off public debate too early by rendering a decisive ruling on the matter. It's still a toss-up, in my view. It will come down to whether Kennedy believes more harm than good can come from waiting, and vice versa. A caution: The questions asked by justices are not necessarily representative of their likely vote in the case. Rather, they tend more toward probing for a response from counsel to see what the arguments are in opposition to the opinions implied by the questions. So Kennedy asking about marriage being between a man and a woman for millennia isn't necessarily an indication that he plans to vote for upholding the bans. Likewise, Scalia asking what grounds states would have for withholding full faith and credit from other states' marriages doesn't mean he plans to vote for requiring that recognition. Thoughts?
What might be interesting is if the states win the first argument that they don't have to allow same-sex marriages to happen in their states, but the state loses on the second argument where someone goes to another state and then comes back and the state would have to recognize their marriage. That might be the compromise Roberts is looking for. - - - Updated - - - What might be interesting is if the states win the first argument that they don't have to allow same-sex marriages to happen in their states, but the state loses on the second argument where someone goes to another state and then comes back and the state would have to recognize their marriage. That might be the compromise Roberts is looking for.
On the other hand, Roberts noted that whatever is decided on question one pretty much determines what happens with question two, so I'm not sure about that.
Transcript for Question #2: http://www.supremecourt.gov/oral_arguments/argument_transcripts/14-556q2_1813.pdf Audio for Question #2: http://www.supremecourt.gov/oral_arguments/audio/2014/14-556-q2
As it turns out, I did get a chance to peruse the transcripts for both questions. The Court seems very skeptical of the states' arguments in Question 1 (states being required to create legal same-sex marriages), but also hesitant to interrupt the democratic process. They also seem very skeptical of the states' arguments in Question 2 (states being required to recognize other states same-sex marriages). While they could still rule against same-sex couples on Question 1, but in their favor on Question 2, I don't think that will happen. I think if they rule against same-sex couples on Question 1, they will follow suit on Question 2. Likewise, I think if they rule in favor of same-sex couples on Question 1, they will certainly rule in their favor on Question 2. So I'm less inclined to think that they will 'split the baby'. I'm also a lot less optimistic about them ruling in favor of same-sex couples and their marriages. They may very well decide that same-sex marriage is something too new, and that it's not their place to decide this question. If that happens, it will be a terrible blow to same-sex couples, and to gay rights more generally. It will leave the couples who have married in legal limbo. In the case of same-sex relations, we had to wait for 17 years after the Bowers ruling for the Lawrence case to arise and overturn it. I think it will be a lot harder and take a lot longer for us to move from a possible defeat in Obergefell to a new case that overturns a negative outcome for same-sex couples in this one. It has been 42 years since Baker v. Nelson, the case that Obergefell could overturn. I probably don't have another 42 years to wait for this. We'll have to seriously think about whether or not we want to stay in the USA if the Court sustains the bans. Moving would be extremely hard for us. Maybe we wait until we're able to retire from work and our remaining parents are gone; perhaps 20 years. Even that is too long to wait to be married, though. So we'll go out of state if we must for the interim. Long term, I will have a lot less interest in remaining a citizen of a nation that doesn't want me. But I really, really, 17x really hope it doesn't come to that.
Even though that seems like an illogical split, that's the same type of split the Court made in NIFIB V Seleblius. In that case, it decided, against the text of the law, that the Obamacare penalty was a tax, but that the Feds couldn't hold back Medicaid money if individual states decided not to opt in for the Obamacare expansion. So there could be an illogical political compromise in the decision.
I thought I would highlight some of the quotes from the case that haven't been all over the media, for people to consider: From Justice Breyer:
To which I say, he's full o' bull. I live here. Michigan most definitely does not value the dignity and worth of gay people.
Here is an interesting take on the proceedings of Tuesday. Don't be upset bigots. The world won't end, Christianity will not be abolished and you won't be forced to get gay married.
It's gonna be a nail bitter for sure. I'm. Ore apt to believe the court will side with gay marriage based on their earlier actions in deciding what cases to take and what cases not to take, and refusing to issue a stay on marriages in a states that have had their bans over turned. I very much doubt the court would allow more marriages to left in legal limbo if they were going to rule against gay marriage.
