Live blog: Obergefell v. Hodges
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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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So several Justices wanted to know, for example, whether a state could deny recognition to all marriages performed in another state. They were skeptical when the suggestion was that a state might be able to do that.
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More on disruption during Supreme Court args on same-sex marriage, from @Tonymauro: spectator shouted #ssm was a sin http://t.co/55yN3qE4Mm
— Zoe Tillman (@ZoeTillman) April 28, 2015 -
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.
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On the other hand, Justice Kennedy's near silence in the second argument suggests that he did not think that the second question was likely all that important. The only significant question he asked was something like "if we assume states have a sufficiently strong interest that they do not have to allow same-sex marriages in their own state, doesn't that necessarily mean the states have a strong enough interest to permit them to refuse to recognize same-sex marriages from other states?"
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Of note, everyone seemed to agree that if the couples win the second question on recognition, then a couple living in TN could go to another state (say, MD), get married, come back to TN, and TN would have to treat them as married.
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If same sex couples lose on marriage, they may face uphill fight on recognition in #SCOTUS. Kennedy quiet.
— Marcia Coyle (@MarciaCoyle) April 28, 2015 -
At 27:00 in the #SCOTUS audio for Question 1: 20 seconds of loud protest against same-sex marriage. http://t.co/owmJPtzY9r
— Victoria Kwan (@victoriakwan_) April 28, 2015 -
To explain a little further, Article 4 says: "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." There were questions about whether a marriage certificate counts as a public act or record?
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#SCOTUS seems willing to rule that states banning #gaymarriage must recognize gay marriages performed elsewhere #ReutersSCOTUS
— Reuters Legal (@ReutersLegal) April 28, 2015 -
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.
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With oral arguments now over: Justice Anthony Kennedy, a pivotal vote, seemed open to legalizing gay marriage nationwide.
— Lawrence Hurley (@lawrencehurley) April 28, 2015 -
But could it also mean that Kennedy thinks that the second question is totally unnecessary because whatever the decision is on the first should carry over to the second? That is, as you reported him asking, "if we assume states have a sufficiently strong interest that they do not have to allow same-sex marriages in their own state, doesn't that necessarily mean the states have a strong enough interest to permit them to refuse to recognize same-sex marriages from other states?"
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I am predicting Scalia and Roberts will possibly vote against the states on marriage recognition issue. Is it possible ?
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Were there any question regarding the Baker v. Nelson case? Even indirectly? Judge Sutton gave it considerable thought in his decision.
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Ted Olson -- who argued Perry v. Hollingsworth -- at the Court today.
The Legal Times had this story on him earlier this month.
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You indicated the sense was the first question would make the second question moot. Was there any indication that someone tried to reverse that thought and argue the second question would make the first moot? Essentially if states were forced to recognize gay marriages performed elsewhere, what rationale would they have to continue to ban the granting of marriage licenses other than animus? That essentially it would legalize gay marriage in their state other than adding an additional requirement of travel to a state where the marriage could legally be performed.
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Karen Bleier provides commentary at The Daily Beast, especially on how Justice Kennedy and Chief Justice Roberts may vote.
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Kennedy sends mixed signals as Supreme Court divides on gay marriage http://t.co/wdeTGNJ1qZ via @bpolitics #SCOTUS #SSM
— Greg Stohr (@GregStohr) April 28, 2015 -
If SCOTUS rules in favor of SSM, would it then be a requirement for anyone performing marriages to perform same-sex marriages? Does this include churches?
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So after the oral arguments today when would SCOTUS actually make and announce their ruling?
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Was there any discussion of whether this would affect 1st amendment exercise of religion rights, for people like Bakers, Florists, or pizza shop owners, who will not provide services for Gay marriages?
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