Live blog: Obergefell v. Hodges
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He is clearly weighing two things: the definition of marriage has been the same for "millennia" versus the fact that denying marriage to same-sex couples is an affront to their dignity (and that of the children they raise)
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The Chief Justice also raised the question whether bans on same-sex marriage amount to sex discrimination.
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Quite a few questions about how to interpret the fact that both Kennedy and the Chief Justice have asked questions to both sides. As Tom said, on balance, it looks like Justice Kennedy is with the plaintiffs, but you can't confidently predict that outcome. As I mentioned before, it's very common for the Justices (and especially these two Justices) to ask hard questions to both sides.
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Can we read anything into Justice Kennedy's questions to the respondents that seemed to indicate that he feels the same way in Obergefell regarding the dignity question as he did in Windsor?
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Did Thomas ask any questions or stick with his usual bench silence?
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Were there any good RBG or Kagan take-down quotes like 'skim milk marriage' in 2013?
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If Kennedy comes down on the side of same-sex marriage equality, is it reasonable to assume this will be an at least 5-4 decision that same-sex marriage is a Constitutional right? (With nothing certain, of course)
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Verrilli, for Obama admin, urged #SCOTUS not to wait on #SSM. Couples "deserve the equal protection of the laws and they deserve it now."
— Brad Heath (@bradheath) April 28, 2015 -
Verrilli began his #SCOTUS argument with a protester's shouts that #SSM supporters can "burn in hell" still echoing in the marble hallway.
— Brad Heath (@bradheath) April 28, 2015 -
Since you have all rotated through the lounge, will someone be blogging the 2nd half?
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What's do you consider the likelihood of Roberts ruling in favor of same-sex marriage (assuming Kennedy votes that way, which would make it 6-3) in order to control or limit the impact?
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Any speculation as to whether the in-court protestors, who are apparently all anti-SSM, are harming their cause with the Justices, lending credence to the animus argument?
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Following up on Andrea's question: I know that the Chief Justice assigns the opinion whenever he is in the majority, but what if he joins the majority, assigns the opinion to himself, and then writes a much narrower pro-SSM opinion than the other five Justices in that hypothetical majority would favor. Do the others have any tools at their disposal to force him to surrender the opinion so that they can rule more broadly?
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Do you think the Court might rule no to the first question (mandatory licenses) but yes to the second (interstate recognition)? Or is it an all-or-nothing deal?
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Is it just me, or does it sound like the conversation was more philosophical than legal? I don't think we've heard many comments from the parties or the Court about Lawrence, Romer, and Windsor affect this case.
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If they decide against marriage will that overturn the 37 states that have it legal now? Or will it leave the states fractured solving nothing?
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Was there any more to the question regarding sex discrimination by the Chief Justice? Is that a possible angle that he could use to rule more narrowly for SSM?
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Verrilli: “simply untenable” to deny same-sex couples right to marry or ask to wait for future where it's legal http://t.co/I6eGgjEeNs
— Michael Tackett (@tackettdc) April 28, 2015 -
Eric, to your point on "would face hard questions about existing marriages" wouldn't this then face an entirely new constitutional question, as licensing granted cannot simply be stripped away - and we would therefore have two classes of individuals within one state? It seems that in the unlikely situation the Court votes against SSM, they would create a serious and horrible situation not just for the married couples and the states, but also for themselves.
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I note with interest that in the news coverage, especially Amy Howe's most excellent In Plain English preview, that there is (rightfully) a focus on the personal stories of the petitioners. Do any of the Justices seem swayed or moved by those arguments, at least from a "gut feeling" perspective? That's what's missing in the audio or transcripts that I'd like to get your reporter's sense of.
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I understand that when asked if SSM had been recognized anywhere before 2001, Bonauto gave a clear "no". I'm surprised that she didn't say more about marriage having long been a "church" rather than "state" event, linking to more recent changes re: property & legal status of women. It seemed there was an opening for an argument that far from being stable for millennia, the definition of marriage has actually been in frequent flux. Any sense of her strategy in steering away from this?
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FYI all, I expect that we are approximately 15 minutes away from Kevin Russell leaving the lawyers' lounge to come and update us about the second part of the oral argument.
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I'm going to make the bold prediction that SCOTUS rules 9-0 in favor of SSM.
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Noah Feldman has commentary at Bloomberg View. He notes J. Alito's question early in the argument about Plato's views on homosexual love, among other things.
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I remember Scalia saying Lawrence/Windsor would lead to constitutional protection of SSM. Any chance he'll say those cases tie his hands now?
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As I mentioned before, if you are trying to ask a question, you are much better off making a new comment instead of commenting on an existing thread. It's much easier for us to monitor and respond to
the new comments. -
German Lopez has commentary at Vox, especially with regards to Justice Kennedy's questions.
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Just curious... but re: the Court granting the Government's request to participate in oral arguments, have they ever turned down a request to participate by the SG?
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Divided Supreme Court wrestles with #gaymarriage case http://t.co/mBNzo5nrgh #ReutersSCOTUS #SCOTUS pic.twitter.com/alS7S8Y0ET
— Reuters Legal (@ReutersLegal) April 28, 2015 -
Any chance Alito is the surprise 7th vote in favor of SSM?
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The buzzer just sounded announcing the end of arguments. Kevin will be on his way down to update us.
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Is today the shortest turnaround between conclusion of argument and release of the audio?
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Was there any discussion or questions about the comparison to Loving v. Virginia and these cases?
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Arguments are now over. The basic sense seemed to be that the answer to the first question would either make the second irrelevant (if the Court ruled in favor of the couples) or mean that the states would win the second question as well (because if the States have a sufficiently strong interest to permit them to deny marriage to same sex couples in their own states, that interest would be strong enough to justify denying recognition to same sex marriages from other states)
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Justice Kennedy asked almost no questions in the argument on the second question (the marriage recognition question).
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A little surprisingly, Justice Scalia asked tough questions of the State -- he wanted to know why the text of the Full Faith and Credit provision did not extend to marriages.
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We've had a lot of questions about the level of scrutiny (rational basis, strict scrutiny) etc. that the Court is likely to adopt. There actually wasn't that much discussion of it. The state obviously pushed for rational basis scrutiny, but it didn't become a battleground.
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