Thread: SCOTUS: Will petitioners will prevail on Question 1 in Obergefell v. Hodges?

It is crunch time for SCOTUS! What will they do? This is one of those moments you may remember where you were for the rest of your life when you heard the news. Here is a poll to make your prediction.

This question is not about whether you think marriage equality/SSM is constitutionally mandated. This poll goes to what you think SCOTUS will do with question 1. To be even clearer, questions on the morality or merits of SSM/Marriage equality are outside of this thread, except to the extent they bear on the one question: What will SCOTUS do?

To be even clearer, if you think SCOTUS should not mandate SSM/ME but think they will, your vote should be yes.

Here is a link to the transcript of the oral arguments.

Argh. In editing, I left a typo in the poll. Oh well, you get the idea.

Originally Posted by AlyssaD

It is crunch time for SCOTUS! What will they do? This is one of those moments you may remember where you were for the rest of your life when you heard the news. Here is a poll to make your prediction.

This question is not about whether you think marriage equality/SSM is constitutionally mandated. This poll goes to what you think SCOTUS will do with question 1. To be even clearer, questions on the morality or merits of SSM/Marriage equality are outside of this thread, except to the extent they bear on the one question: What will SCOTUS do?

To be even clearer, if you think SCOTUS should not mandate SSM/ME but think they will, your vote should be yes.

Here is a link to the transcript of the oral arguments.

Argh. In editing, I left a typo in the poll. Oh well, you get the idea.

First off, both questions are equally important, though the second may be moot if SCOTUS rules SSM bans are unconstitutional. An outcome of SSM bans are constitutional, but states have to recognize SSMs performed in other states is a distinct if not highly likely outcome.

Second, there is alot of room even if they do rule against SSM bans as to what they could do. The most likely outcome to my mind would be a very narrow ruling, stating that SSM bans do not pass rational basis review and as such are unconstitutional. That steers them clear of questions about what level of review is appropriate for discrimination based on orientation, does not label SSM itself a right, and limits the level of precedent the case sets. However, even being the most likely, I think it is less than 50 % chance of that outcome, with the court ruling SSM bans do not pass intermediate scrutiny based on gender discrimination, or finding that SSM bans are constitutional but not recognizing SSM performed in other states nearly as likely.

There really are a whole lot of possible permutations to exactly how the court rules, and the details will probably be at least nearly as important as the actual decision.

Personally, I don't see that there's a constitutional right for state sanctioned marriage of any kind, same sex, heterosexual or otherwise. As a result, equal protection should provide that if states are entering into the business of marriage, they must be prepared to sanction or recognize any form of marriage, at least between any two people, if not more broadly. To do otherwise, would institutionalize discrimination based on sexual preference and contradict those constitutional protections.

That said, greater division between what is considered the religious rite of marriage and state sanctioned marriage will be further divided, which is not necessarily a bad thing, in my view.

Of course, your courts have been known to invent rights out of whole cloth, so who knows for sure.

Originally Posted by AlyssaD

It is crunch time for SCOTUS! What will they do? This is one of those moments you may remember where you were for the rest of your life when you heard the news. Here is a poll to make your prediction.

This question is not about whether you think marriage equality/SSM is constitutionally mandated. This poll goes to what you think SCOTUS will do with question 1. To be even clearer, questions on the morality or merits of SSM/Marriage equality are outside of this thread, except to the extent they bear on the one question: What will SCOTUS do?

To be even clearer, if you think SCOTUS should not mandate SSM/ME but think they will, your vote should be yes.

Here is a link to the transcript of the oral arguments.

Argh. In editing, I left a typo in the poll. Oh well, you get the idea.

Here is an interesting article you might enjoy: Joe Loves Tom and Sue: Why Roberts Could Be Writing the Same-Sex Marriage Decision | Maryland Appellate Blog

Second, as also noted at the MSBA panel, Roberts is a judicial minimalist. With a few notable exceptions, Roberts prefers to resolve cases on what it sees as the narrowest grounds possible, drawing the most votes as possible. (Elonis v. United States is but the latest example.) Roberts’ questioning indicates that he sees sex discrimination as the narrowest argument for the petitioners. He asked the states’ counsel “if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?”
Third, on a related point, Roberts may have a particular reason to desire a narrow ruling in Obergefell. Conservatives have long feared that striking down state same-sex-marriage bans would endanger bans on polygamy. Justice Scalia has said as much in his dissents in Windsor and Lawrence v. Texas. In Obergefell,a 15-state amicus brief, citing the pending appeal of a ruling striking down Utah’s criminalization of polygamy, argued that a ruling for the petitioners would “inevitably override legitimate policy differences in other areas, such as how [marriage] is to be limited based on age, consanguinity, and number of participants.”
During argument in Obergefell, Justice Alito asked whether a group consisting of two men and two women – all highly educated consenting adults – would be entitled to a marriage license under the petitioners’ arguments. Justices Scalia and Alito both were skeptical of the petitioners’ answer. Roberts said nothing, but it’s doubtful that he is as confident as the petitioners’ counsel that the four-person hypothetical was easily distinguished.
Roberts’ love-triangle hypothetical invites a follow-up question: “What if Joe loves Tom and Sue?” It’s easy to imagine Roberts fearing that Justice Kennedy’s likely rationale – a dignity-based argument – provides an insufficiently clear answer. But a sex-discrimination rationale provides an easy answer: there is no sex-discrimination if the state tells Tom, Joe, and Sue that only a two-person marriage is legal.

The first point strikes me as questionable, but these two points quoted are quite possible.