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A look at what’s at stake in next week’s Supreme Court arguments in the same-sex marriage cases

LGBT Legal Cases Marriage equality Marriage Equality Trials

It's time for marriage equality. Attribution: JEWEL SAMAD/AFP/Getty Images
It’s time for marriage equality. Attribution: JEWEL SAMAD/AFP/Getty Images
The Supreme Court is set to hear oral arguments next week in four cases from the Sixth Circuit Court of Appeals challenging state same-sex marriage bans. The Court will confront cases from Ohio, Michigan, Kentucky, and Tennessee.

First, the Court has divided the argument time into two distinct questions: the first is whether states must license marriages between same-sex couples, and the second is whether states must recognize legally-performed out-of-state same-sex marriages. The Court has allowed 90 minutes for the first question and 60 minutes for the second question. As we’ve reported, the Court has allowed two advocates to argue for each side, and the Solicitor General will also argue in favor of same-sex couples on the first question.

Mary Bonauto, one of the key architects and legal thinkers of the same-sex marriage movement, will argue for the same-sex couples on the first question. Bonauto works for Gay and Lesbian Advocates and Defenders (GLAD), a LGBT legal organization that has won important state marriage cases, and who won a challenge to the federal Defense of Marriage Act (DOMA) in the First Circuit Court of Appeals.

Also for the plaintiffs, Douglas Hallward-Driemeier of Ropes & Gray will argue the second question. He is a long-time advocate before the Supreme Court, with a great deal of experience.

For the states, John Bursch, Michigan’s former solicitor general, will argue the first question. Joseph Whalen, an assistant solicitor general for Tennessee, will argue the second question.

You can read all the briefs here, thanks to Equality Case Files.

Equal Protection

The one area where all the briefs filed by the challengers, the same-sex couples and the Solicitor General who sides with them on the first question, agree is on the question of equal protection.

As the United States’ amicus brief argues, “The marriage bans challenged in these cases impermissibly exclude lesbian and gay couples from the rights, responsibilities, and status of civil marriage. These facially discriminatory laws impose concrete harms on same-sex couples and send the inescapable message that same-sex couples and their children are second-class families, unworthy of the recognition and benefits that opposite-sex couples take for granted. The bans cannot be reconciled with the fundamental constitutional guarantee of “equal protection of the laws,” U.S. Const. Amend. XIV.”

The same-sex couples agree. As the Michigan couple’s brief states, “The marriage bans violate the Equal Protection Clause under any standard of scrutiny, as they are not rationally related to the achievement of any legitimate governmental purpose.”

The couples and the United States also argue that laws discriminating on the basis of sexual orientation warrant a heightened level of judicial scrutiny. The Court looks at certain laws closer if they have a negative effect on a minority group. Although the Court hasn’t added any new classes of people to the list since the 1970s, a key argument for LGBT rights advocates is that the Court should include gays and lesbians because they’re a distinct minority with an immutable characteristic and they’ve faced a long history of discrimination. Changing the standard of review for laws affecting gays and lesbians would mean that instead of a presumption of constitutionality, those laws would be presumed to be unconstitutional unless the state has a substantial justification for the laws.

The couples go further though, arguing that the bans violate equal protection on the basis of sex, because a man can only marry a woman and a woman can only marry a man. They point out that the same-sex marriage bans explicitly reference gender in the actual text of the laws.

But none of the couples say explicitly that the laws would pass under a lower level of scrutiny. Instead, they urge the Court to strike the bans even if the Justices determine that the laws only require a rational basis.

This is where the couples make similar arguments. Each brief takes on the standard arguments in favor of the bans: procreation, caution, federalism.

The same-sex couples argue that the social science points to the fact that same-sex couples make good parents, and further, the idea of marriage as simply about procreation is irrational. Elderly people can marry, as well as infertile people or even couples who plan to never have children though they could. The couples seek to distinguish their vision of marriage from the states’ purported vision. While the states argued in the lower courts that marriage is a government program created to deter people from abandoning their children, the couples describe marriage this way: “Marriage is a commitment like no other in society. It announces to the world a union that society understands. It grounds couples. It is a vow, recognized by the State, to stay together when times are hard. It provides a social safety net of reciprocal responsibility for the less affluent of two spouses – security for homemakers and stay-at-home parents – in the event of death or divorce.

Marriage brings stability to families. It tells children that they have, and will always have, two parents. For children of same-sex parents, allowing their parents to marry dispels the notion that their families are inferior, “second tier.” Marriage brings dignity to adults and children alike.”

Because marriage is good for children whether it’s an opposite-sex or same-sex marriage, the couples argue, procreation is not a valid reason to discriminate against same-sex couples.

One last argument is made on the question of equal protection. The Court has a line of cases going back to at least the 1970s that suggest, to quote from one of the early cases, “[I]f the constitutional conception of “equal protection of the laws” means anything, it must at the very least mean that a bare… desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”

This line of cases refers to the so-called “animus” argument: that, once it’s decided that a law targeting an unpopular minority lacks any relation to a legitimate government interest, the law is considered to be based on “impermissible animus” – hostility to the minority group. The 1996 Supreme Court case Romer v. Evans used this line of cases to strike down an amendment to Colorado’s constitution that would have barred cities and localities from adopting anti-discrimination measures for gay and bisexual people. The Court in that case held that the amendment was “too narrow and too broad” because it targeted a single, specific group for treatment that wiped out all protections for them on any level.

The couples argue that the lack of a true rational basis for the marriage bans here allows the Court to infer that the bans were enacted based only on impermissible animus. The history of the bans also point in that direction: before the late 1990s there were no same-sex marriage bans clearly embedded in state laws or constitutions. Many of the state constitutional amendments were only enacted in 2004 and 2006. And aside from that, the couples argue, the contradictions in each state make it clear that the bans weren’t passed for a valid reason. Some of the states facing challenges before the Court allow same-sex couples to adopt, some provide other benefits to the children of same-sex as well as opposite-sex couples. So the bans effectively hurt those children by barring their parents from marrying under the rationale that marriage is for the protection of biological children, while states at the same time are protecting adopted children.

The states take issue with all of these arguments. They suggest the social science isn’t specific on the question of raising children, and that same-sex marriage is so “new” that there’s no way to judge the effects of it yet. Kentucky argues that its rational basis for the ban is “procreation and promotion of a stable birth rate.” The state also argues that homosexuality is not an “immutable” characteristic (in other words, that it can change), that while gays and lesbians have faced discrimination, the marriage bans are separate from that history, and that the bans don’t discriminate on the basis of sexual orientation in the first place. They argue that the bans don’t discriminate on the basis of gender because they don’t cause harm to a specific gender: neither men nor women can marry someone of the same sex.

While the other states’ arguments are less harsh, they’re still the standard ones we’ve seen in every marriage case so far. The other states mainly focus on federalism and the “democratic process” arguments that the Sixth Circuit decision relied on. Essentially, the same argument that Virginia made in Loving v. Virginia: that states should have the right to decide who may or may not marry and which marriages a state should recognize. They argue states are sovereign and marriage is one of the decisions that shouldn’t be interfered with by the federal government. They partially rely on United States v. Windsor, which struck down Section 3 of the federal Defense of Marriage Act (DOMA), for their argument. They suggest that Windsor allows states to make their own decisions on marriage, and that the only issue in that case was the federal government’s unusual intrusion into the states’ prerogatives on marriage.

The couples, arguing on the Windsor point, note that the Court repeatedly refers to marriage laws respecting constitutional rights and citing Loving v. Virginia.

Due Process

The briefs also argue over the concept of due process. Under that clause, when a right is considered “fundamental”, it’s shielded from government intrusion and disrespect.

The Court itself has held that the right to marry is “fundamental” and that it’s one of the most basic civil rights.

The dispute is over which right is being discussed. The couples point to the language in Loving v. Virginia as well as Zablocki v. Redhail to argue that marriage is fundamental. One of the characteristics of a fundamental right is that it’s “deeply rooted” in the country’s history and traditions, and the couples suggest that surely marriage fits that description. And the couples point out that the Court hasn’t simply let marriage bans stand based on tradition or federalism: the Court has struck down bans on interracial marriage, on marriages involving someone who hasn’t paid child support from a previous marriage, along with other cases. Why then wouldn’t the Court want to strike down the bans against same-sex marriage?

The states for their part argue that the “fundamental” aspect of marriage relates solely to procreation: marriage is fundamental to survival of the human race. Without procreation, marriage isn’t fundamental. And further, the states argue that the “right to marry” isn’t a specific enough description of the right at issue. They suggest the proper way to view the dispute is whether there’s a fundamental right to “same-sex marriage” itself, and they point out that it has only existed in the United States since 2004. Without getting too deep into the weeds, this dispute touches on a longstanding argument between Justice Scalia and a majority of the Justices. Justice Scalia believes that a right is fundamental only at its most specific level while a majority of the Court has said fundamental rights are a bit more broad than that.

The Court seems most likely to address the equal protection argument, and avoid the question of whether marriage between couples of the same sex is fundamental. That is, at least based on the Court’s gay rights jurisprudence so far. The Justices have relied on the “animus” argument in many of their cases, and they’ve relied on the dignity and worth of individuals, whether gay or straight. That said, the Court could decide in the end that the due process argument should be addressed.

The Kentucky couples do provide one alternative. As SCOTUSBlog pointed out: “Even if the Court were now to switch and treat access to marriage as something less than a “fundamental right,” the Kentucky brief argued that the institution holds such a “crucial place in American society” that it “would still require courts to closely examine laws categorically excluding same-sex couples from that institution.”

That brief went on to assert: “Marriage is a foundational means in our society of seeking personal fulfillment and acquiring community esteem. Excluding a class of people from that institution, therefore, can hardly be considered rational unless it furthers some substantial goal of the state.”

That line of argument could make it possible for the Court to rule in favor of same-sex marriage without having to spell out — for the first time — a constitutional test for judging anti-gay laws or other government action. Indeed, the Court has made a series of gay rights decisions in recent years without settling on a specific test. It did not do so, for example, in its most recent ruling in a major gay rights case — the 2013 decision in United States v. Windsor, striking down a key part of a federal law that denied federal marital benefits to same-sex couples who already were married under state laws allowing such unions.”

This idea, that restricting only same-sex couples from such an important right, might seem more acceptable to Justice Kennedy, who tends to blur the lines between equal protection and due process in his decisions.

We’ll know more after the arguments next Tuesday, April 28.

97 Comments

  • 1. RemC_Chicago  |  April 21, 2015 at 10:39 am

    http://www.scotusblog.com/2015/04/preview-on-same

    Lyle's work is universally admired and respected (I was disappointed in his repeated use of "lifestyle" instead of "orientation," though). I found his observations a bit alarming.

    "It would be wrong, though, to suggest that there is not some genuine dread emerging in some of these filings. Some, like the brief of the Family Research Council, are sure that the arrival of same-sex marriage will destroy the institution of marriage as it has been known throughout western history. Others make ultimately the same point more subtly by using social science data to show the devastating effect they perceive for children of same-sex parents — as, for example, in a brief by a group known as the Ruth Institute, which suggests that a child’s capacity to develop “self-knowledge” has little or no chance when raised by same-sex parents who entered marriage only out of gay attraction to each other."

    I realize that he shouldn't be expected to know the story behind the hateful & hating Ruth Institute, but the idea of their being able to state anything subtly or have anything genuine to say on this issue gave me pause.

    Most troubling was this:

    "There is one brief on this side of the case that uses calm reason but seeks a truly historic outcome: it argues that the lower federal courts simply have no jurisdiction over claims of any right to same-sex marriage, and that the Supreme Court should dismiss these appeals outright, and let the battle then be waged in state courts, with perhaps an ultimate appeal from a state court to the Supreme Court.

    This is the brief of the conservative advocacy organization, Eagle Forum Education and Legal Defense Fund. It leaves for later the question of whether the Supreme Court has Article III authority to decide the issue at any point, but in the meantime clearly seeks to end the controversy as it has now reached the Justices in appeals from lower federal courts. This brief is seeking to raise a major obstacle to a Supreme Court ruling this Term, and any time very soon. How the Justices will react is deeply uncertain, and may well depend upon how closely they read this particular brief. If it does not come up at all in oral argument, it conceivably would have no effect."

    AND this—while we responded to these ideas with disbelief and outrage, they're characterized here as if they could be credible:

    "An example of the kind of brief that some members of the Court are likely to find more compelling and perhaps even quite persuasive is one from a group calling itself scholars of marriage, which seeks to build a mathematical model of the effect of a “re-definition of marriage” if over the next thirty years it led to no more than a five-percent reduction in the number of opposite-sex marriages, a figure that it implies may be too small. The bottom line, it suggests, could be an added 300,000 children being born into “non-marital parenting situations” with considerable personal and social deficits as a result, plus the anticipated abortion of nearly 900,000 children.

    Such a brief is clearly intended to show that anxiety over the arrival of same-sex marriage is not simply an emotional response, but a social consequence that is quite capable of being enumerated."

    Yikes.

    From his review of the state's briefs in support of the bans:

    "The outcome of the Court’s four new cases that will go down in history under the title Obergefell v. Hodges is not inevitable, precisely because the decision will have such momentous implications for the nation, and for the state governments under the Constitution’s Fourteenth Amendment.

    The result could complete the marriage revolution, or it could stall it and open a new era of deep controversy in legislatures and at the ballot box. Not the least uncertainty would be the legal fate of many thousands of same-sex marriages that were performed as a result of court rulings."

    Am I reacting from latent paranoia?

  • 2. jcmeiners  |  April 21, 2015 at 10:53 am

    I was also a bit troubled by this. I hope and trust that it's just a scholarly take on possible alternative views, and not a real potential outcome. Next week we'll know more and can start reading the tea leaves.

  • 3. Scottie Thomaston  |  April 21, 2015 at 11:29 am

    I think he was writing more as a Supreme Court insider than a LGBT rights advocate. Keep in mind that even the Justices won't necessarily know which amicus briefs are filed by groups who have a sordid history or are generally hateful. They don't keep up with that aspect of the cases themselves. They're just focused on legal arguments and they could potentially find some of the amicus briefs persuasive and others simply crazy.

    So I don't think Lyle was out of bounds really. He wasn't writing as if he and SCOTUSBlog want the cases to turn out a certain way, but just to inform people about what the Justices might find persuasive.

    (That said, many of the lawyers at SCOTUSBlog wrote amicus briefs in the Prop 8 case in favor of marriage equality, and Lyle has been covering the issue since the early 90s.)

  • 4. RemC_Chicago  |  April 21, 2015 at 12:00 pm

    Thanks for your responses everyone. Clearly, I don't believe there are truly any rational, legal reasons to deny marriage equality, but as the judges in the Sixth Court demonstrated, perspectives from the anti- side can be as convoluted, as upside-down as they want to make them. And I understood all of the parameters regarding Lyle. I can't imagine we don't have four solid votes in our favor, and it would be illogical for Kennedy to go against everything he's written up to now about fairness and the impact on our children. I didn't want to think there'd be something in all this craziness that would be taken so seriously that the judges' discussion would veer off onto the track for Crazyland.

  • 5. mu2  |  April 21, 2015 at 11:38 am

    For sure, trying to predict the SC is a fool's errand but I can't imagine they would overlook a couple of basic incontrovertible (ISTM) facts: Denying equal marriage rights would clearly harm those many thousands mentioned in the last paragraph…and affirming them has no demonstrable harm to those opposed, beyond angst and anger (pissing them off.) We shall see.

  • 6. davepCA  |  April 21, 2015 at 11:45 am

    The courts have already made it very clear that someone simply feeling frustrated because their personal prejudices are no longer being given force in law is not "harm".

  • 7. David_Midvale_UT  |  April 21, 2015 at 3:16 pm

    Here in HATU—The Bass Ackwards State, the locals claim that not being able to tell their neighbors how to live is an attack on their religious liberty. For some reason, these clowns cannot see that their behavior is deliberately disobedient to a cornerstone of their (huge air quotes) religion, specifically the principle that Jesus called the Second Greatest Commandment.

  • 8. VIRick  |  April 21, 2015 at 3:33 pm

    "…. the principle that Jesus called the Second Greatest Commandment."

    David, I know you didn't deliberately mean to confuse, but given my utter and absolute ignorance of whatever "Jesus said" according to any and all christianist denominations, I am completely baffled.

  • 9. David_Midvale_UT  |  April 21, 2015 at 4:15 pm

    Every major word religion and many secular philosophies include some form of the Ethic of Reciprocity, more commonly called The Golden Rule, in their basic teachings. In Christianity, the approved texts state that Jesus called this principle the Second Greatest Commandment. I won't bore you with the details.

    In this situation, the reference to The Golden Rule is about how we treat our neighbors and not the more common, "She who has the gold makes the rules."

  • 10. VIRick  |  April 21, 2015 at 7:04 pm

    Thank you.

  • 11. RemC_Chicago  |  April 22, 2015 at 10:46 am

    I'm always willing to help you out: "Love your neighbor as yourself." How do you think these Christianists are doing on this count?

  • 12. 1grod  |  April 21, 2015 at 5:42 pm

    ACT II: Read Scalia’s decent in Windsor to get an insider's view how the majority will shape their opinion. To him Windsor is a deliberate legal mishmash [whatever disappearing trail of its legalistic argle-bargle one chooses to follow] as well as a explicit road map back to the court. ANIMUS:‘bare . . . desire to harm p 22. “The Majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court’s declaration that there is “no legitimate purpose” served by such a law, and will claim that the traditional definition has “the purpose and effect to disparage and to injure” the “personhood and dignity” of same-sex couples. [To demean, impose inequity, impose a stigma, brand gays as unworthy, to humiliate their children and to do so with malice p 21]. The majority’s limiting assurance will be meaningless in the face of language like that, as the majority well knows. That is why the language is there”. p 24
    . https://www.law.cornell.edu/supct/pdf/12-307.pdf

  • 13. VIRick  |  April 21, 2015 at 7:12 pm

    Yes, and despite the fact that he sees it so clearly, and understands precedent quite well, he will still fly off the handle, invent some fresh mishmash and argle-bargle, while continuing from his previous flaming dissents, and thus (along with Clarabell), pompously rule against us.

  • 14. StraightDave  |  April 21, 2015 at 10:26 pm

    Rick- Fortunately, Scalia won't get the opportunity to "rule", so he'll have to settle for "rant".

  • 15. VIRick  |  April 21, 2015 at 11:17 pm

    True enough. He'll be in the minority, so he'll continue with his off-the-handle rantings from wherever it was he left off from the last time around.

    And he'll do just that, too, as if no other precedents have been set and nothing else whatsoever has happened in the interval. Despite his "big picture" clarity, in foretelling precisely how the court will rule and how they will go about it on the next follow-up LGBT-type case, he'll burrow in with his tunnel-like focus, and pompously make some agitated pronouncement that will merely be a continuation of his last performance.

  • 16. davepCA  |  April 21, 2015 at 11:42 am

    That stuff from the "scholars of marriage' is a bunch of irrational nonsense, it won't make any impression on the court, and it isn't anything for us to be concerned about. This issue is about giving same sex couples a legal document called a "certificate of civil marriage" instead of forcing gay couples to continue to live without those legal protections. The presence or absence of that legal document has absolutely no effect whatsoever on whether opposite sex couples marry, stay married, have children in our out of wedlock, raise them well or poorly, or anything else. Opposite sex couples won't even know whether or not a same sex couple has that legal document and is legally married unless they are invited to the wedding.

    If anything, same sex couples having access to civil marriage (in the remaining states that don't already allow this) might slightly increase the number of children who get adopted because some same sex couples, like other couples, may be reluctant to do so until they are assured that their family has the legal protections which come from that legal document. And if anyone considers more adoptions a bad thing just because the couple are the same sex, that's just their own anti-gay prejudice. And while they are free to feel that way, the law cannot give effect to those views.

  • 17. sfbob  |  April 21, 2015 at 2:11 pm

    As with the arguments made by the states, the arguments raised in the anti-equality amicus briefs are relatively easy to refute and if they come up during oral arguments they undoubtedly will be. The Justices may not read all of the amicus briefs but I guarantee you that the counsel for our side does and that they will completely understand the sordid background of groups like the Ruth Institute.

  • 18. JayJonson  |  April 21, 2015 at 2:48 pm

    His point is that some of the sane attorneys know better than to use such rhetoric, but that others, as in the ones you cite, are really writing to the base and supporters and know that the Court is beyond such fear-mongering and craziness. (Not that 4 of the Justices will not rule against us.)

  • 19. RnL2008  |  April 21, 2015 at 12:01 pm

    I would tend to agree with Dave….I don't believe SCOTUS is going to allow this mess to continue and uphold the ruling from the 6th. If they were to do that it would throw literally thousands of marriages into chaotic hell because then those States in the 4th, 7th, 9th and 10th would be doing their damnedest to nullify the legal marriages that have already taken place and use the ruling from SCOTUS as grounds to do so.

    I believe SCOTUS has in some way already made their decision and the oral arguments are being done to ensure no one state claims Judicial ACTIVISM!!!

    I personally would have been more concerned had they granted cert back in October, that doesn't mean they would rule against Marriage Equality, but it would have caused me some unnecessary restlessness. I also would have preferred the question to be in front of the Justices would be one regarding Marriage as a Fundamental Right, believe that the reason for the questions as they are has more to do with Section 2 of DOMA…….I could be wrong, but that's just my thought process at the moment.

  • 20. Randolph_Finder  |  April 21, 2015 at 1:11 pm

    Serious question, does anyone know where an accurate number can be gotten of the number of Same Sex marriage which have occurred in states where the state was forced to grant SSM because of a federal lawsuit (which presumably would be overturned if the SC agrees with the 6th?

  • 21. RnL2008  |  April 21, 2015 at 1:14 pm

    County records might have that number. Or even one of the Equality organizations.

  • 22. FredDorner  |  April 21, 2015 at 1:39 pm

    Many marriage equality states don't track the gender of the spouses, just like they no longer track their race. It makes collecting that statistic very difficult.

    Note that Alabama still tracks the race.

  • 23. VIRick  |  April 21, 2015 at 4:20 pm

    Alabama had an exact number of 545 marriages between same-sex couples, as recorded by their state's Vital Records office, during the 23-day period (so far) during which it was allowed.

    Michigan had 323 marriage licenses issued on the one day in February 2014 (in 4 counties) when it was allowed.

    Wisconsin had 555 completed marriage licenses (and 604 applications) during their one-week window in June 2014.

    During the window in Indiana, Beth White, the Marion County Clerk (Indianapolis) issued 586 licenses and personally married 457 couples for the 2 1/2 days that marriage was possible. However, a total of 85 counties issued licenses in that state during the window. I do not have the total number for the other 84 counties.

    During the several windows in Colorado, Boulder County issued 202 licenses, Pueblo County issued 40, and Denver County issued more than 60 (over 300 total).

    Arkansas issued 541 marriage licenses (after the state court ruling) during its one-week window in May 2014.

    Utah recorded well over 1200 marriages between same-sex couples during its extended window.

    But outside of some preliminary numbers from the 3 jurisdictions in Missouri, I do not have state-wide numbers for the remaining states, once the issue became settled law, although, if I recall, "first day" in Florida saw well over 6000 same-sex couples obtain marriage licenses in that state.

  • 24. Rick55845  |  April 22, 2015 at 5:06 am

    Was that 6000 figure a typo, Rick? It's an order of magnitude greater number than any other state on its first day of marriage equality.

  • 25. ianbirmingham  |  April 22, 2015 at 12:29 pm

    The first full day of same-sex marriage in Florida saw more gay and lesbian couples getting marriage licenses in Orange County than anywhere else in the state except Broward County. An Orlando Sentinel survey of county court clerks found that 164 same-sex couples got marriage licenses in Orange County on Tuesday. In Broward, the No. 1 county in the state, the total was 184. No. 3 was Palm Beach County, with 123. In Miami-Dade, which got a half-day head start, the total for Monday and Tuesday was 101.

    Statewide the total number of marriage licenses distributed to same-sex couples topped 1,233. That does not include Hillsborough and Duval counties, where clerks did not separate same-sex licenses from different-sex licenses. Only Holmes and Okaloosa counties did not provide information.

    http://www.orlandosentinel.com/news/os-gay-marria

    NOTE: Both Hillsborough and Duval are BIG counties… I'd estimate 300 to 400 additional marriages took place in the four "uncounted" counties.

  • 26. VIRick  |  April 22, 2015 at 1:27 pm

    Ian, thanks for the clarification on the more precisely-accurate exact numbers of marriage licenses issued to same-sex couples statewide in Florida during its "first day."

    I should have looked up that information myself (as I have it archived), like I did for the states with the "windows," rather than attempt to rely on my hyped-up memory.

    I also have some "first year" numbers from both New Mexico and New Jersey, but neither of those two states would be affected by an adverse SCOTUS ruling. New Mexico's numbers, in particular, are heavily inflated by out-of-state same-sex couples (mainly from Texas) coming there to be married.

  • 27. FredDorner  |  April 22, 2015 at 11:19 am

    Note that some of the states which have performed a large number of in-state and out-of-state marriages don't track the gender of the spouses, in particular neither California nor New York collect that data. It makes life difficult for demographers. http://www.npr.org/2013/07/08/200021271/how-many-

  • 28. Nyx  |  April 22, 2015 at 12:22 pm

    Then you have such places like Iowa who can track… but…

    Iowa complicates it for demographers by giving three options. On Iowa marriage license applications they ask each applicant are you a Bride, a Groom, or a Spouse.

  • 29. Eric  |  April 21, 2015 at 4:38 pm

    You presume incorrectly. Existing legal and valid marriages would not be impacted by a SCOTUS ruling, because the litigation involving those marriages is over. The state would have to attempt to invalidate them anew and deal with the associated due process and takings issues that would arise out of such actions. The financial impact to community property states would make such actions extremely unlikely.

  • 30. David_Midvale_UT  |  April 22, 2015 at 5:29 am

    HATU—The Bass Ackwards State (Utah) pulled every trick out of its scumbag hat to avoid recognizing the legal and valid marriages that were performed in the window between Judge Shelby's ruling and the SCOTUS stay. A state would not have to try to invalidate the marriage contracts to perpetuate second-class citizenship. The clowns could simply ignore the marriages on "no recognition" grounds even if the marriages were previously performed in that state under a marriage equality law. (Amendment 3 "no recognition" was basically the theocracy's justification for not treating the legally married-in-Utah same-sex couples like any other legally married couple.)

  • 31. FredDorner  |  April 22, 2015 at 11:22 am

    The games Utah played were truly shameful at all levels of government from the county clerks to the governor and AG. But the state and federal courts in Utah deserve lots of credit – they consistently did the right thing. Even Mormon judges like Kimball made very good and impartial rulings.

  • 32. ianbirmingham  |  April 21, 2015 at 12:28 pm

    Question 1 is basically "Loving v. Virginia – The Sequel".

    Question 2 is basically "United States v. Windsor – The Sequel" or "DOMA Section 2 vs. Full Faith & Credit – The MMA Cage Fight", whichever you prefer.

    By taking on both questions at once, the Court seemingly intends to clear up the whole SSM issue completely and be done with it.

  • 33. TMA92  |  April 21, 2015 at 1:13 pm

    Are there any LGBT organizations offering free busing to DC for the 28th?

  • 34. David_Midvale_UT  |  April 21, 2015 at 3:23 pm

    The Cherry Blossom Festival is over, so buses should be available if any organization wishes to provide that service.

  • 35. TMA92  |  April 21, 2015 at 3:40 pm

    Why do I always have to deal with nonsensical replies to questions I ask whenever I'm having a bad day? I have absolutely no idea what the Cherry Blossom Festival has to do with the Supreme Court arguments on the 28th.

  • 36. ianbirmingham  |  April 21, 2015 at 4:03 pm

    The Cherry Blossom Festival is a huge attraction which draws many tourists to Washington, D.C. – it celebrates the 1 or 2 weeks (typically around April 4th) in which the beautiful Yoshino Cherry Trees bloom. These trees were a gift to the United States from the Government of Japan back in 1912. Bus companies rake in cash from the many tourists attending this festival. Afterward, many idle buses need customers and so they would be very happy to provide affordable transportation for any kind of late April SCOTUS festival…

  • 37. David_Midvale_UT  |  April 21, 2015 at 4:03 pm

    Charter bus service in and around DC is more difficult to obtain during major events.

  • 38. Mike_Baltimore  |  April 21, 2015 at 7:19 pm

    I worked in or near DC for more than 30 years, and rode Metro (the DC area's subway) almost every day.

    The joke on Metro (riders AND Metro personnel) was that 'the busy season' was from the Cherry Blossom Festival to when the kiddies went back to school.

  • 39. VIRick  |  April 21, 2015 at 5:40 pm

    "Why do I always have to deal with nonsensical replies to questions …."

    TMA, apparently, you've never been to DC for the Cherry Blossom Festival to encounter the massive hordes of tourists who faithfully show up for that event every April, swarming the Tidal Basin and The Mall. As David properly pointed out, that spring-ritual event is now over with. Next will be the hordes of school-kids (actually worse than the tourists) coming to DC for their end-of-the-school-year outings/trips, swarming the many Smithsonians and the US Capitol building. Quite frankly, that will keep the bus companies busy, non-stop, from right now all the way through the summer. Once school is out, it then becomes the sweaty parents and screaming kiddies mob.

    If you're intending on visiting DC, drive yourself to an outlying Metro Station in either MD or VA (one with free parking), and take the Metro in. Alternatively, take Amtrak or the MTA (Maryland Transit Authority) trains to Union Station (a block from SCOTUS). Or fly into Reagan (DCA), and then take the Metro on in from there. Driving in DC itself is nuts, and parking is indescribably worse (and expensive). Whenever I drive to DC, I co-ordinate my plans with one of several on-the-ground "troops." They park their car on the street in advance, to save me the spot, assuming they can find that rare unrestricted one. Then, when I show up, they vacate, I instantly pull in, and they return their car to the condo garage. I don't move my car until my final departure. In the interval, we walk. That's how difficult parking is in DC.

    Oh wait! The cheapest way to get to DC is to take the Chinese bus. They operate from China Town to China Town, up and down the East Coast. China Town DC (at H & 7th, NW) is about a 20-minute walk to SCOTUS. Walk east on H to Massachusetts. Follow Massachusetts to New Jersey. Turn right. Follow New Jersey to the end. SCOTUS is straight ahead, up on the Hill.

  • 40. RemC_Chicago  |  April 22, 2015 at 10:52 am

    To answer your question, you only get nonsensical replies to your questions on bad days. The reasoning is circular but apt.

  • 41. justplainkay  |  April 21, 2015 at 1:39 pm

    I have been mulling over on what basis the court will rule in our favor for weeks now. After reading many of the briefs and commentary about them I believe they will decide that any legislation that burdens who one may choose to marry must pass strict scrutiny, that ssm bans are a burden on who one may choose to marry and they don't pass strict scrutiny. In other words, I think they will rule based on the Due Process clause (marriage is a fundamental right), not the equal protection clause, of the 14th.

    An equal protection ruling would have much more widespread ramifications than just answering the marriage question and I don' t think the court wants to go that far.

    I think this ruling will be as narrow as possible in order to minimize the ramifications so that they minimize the blowback and societal fall out.

    I don't think the word animus will be included in the decision for the majority. How do you tell millions of religious people that they harbor animus – tho it is true, that would maximize the blowback!

    Your thoughts on what the basis of a favorable ruling will be??
    Kay

  • 42. sfbob  |  April 21, 2015 at 2:19 pm

    For the most part I am inclined to agree with you. The decision is likely to be based mainly on Due Process because the court has been (with some significant exceptions) been cowardly about directly addressing sexual orientation as a suspect class if it can avoid doing so and the court may well feel they can continue to treat the issue as an extraneous one when making a decision about marriage. On the other hand even if they avoid touching on sexual orientation it may be more difficult for them to avoid addressing the argument that marriage equality bans constitute sex-based discrimination. That sort of discrimination is not new territory for them and they may well feel they are on more solid ground by discussing it here, though that in itself might create precedent the Court may want to avoid.

    I will note however Justice Kennedy has not previously been shy about calling out animus in his decisions and there's no reason to think he'd avoid doing so now. He will no doubt remind people, as he has before, that "animus" is not a synonym for "blinding hatred" but rather for insensitivity and lack of careful consideration.

  • 43. RnL2008  |  April 21, 2015 at 2:32 pm

    Though I agree with you in part, I also believe that they will have to answer the second question regarding recognition will be probably based on the Equal Protection Clause……the Justices are going to have to stop playing around on both the right to marry as well as the right to have one's marriage recognized across the Country…….if the Justices give any wiggle room that a state may NOT recognize out of State marriages, it will do so for all legal marriages and that's NOT going to sit well with heterosexuals……the time has come to resolve this issue once and for all.

    I also believe that the Justices are NOT blind to what is going on with the moral conscious laws or religious freedom acts and they could mention the ANIMUS aspect, but more like what you stated Bob, NOT blinded hatred, but just being insensitive jerks.

  • 44. sfbob  |  April 21, 2015 at 4:40 pm

    Good points, particularly this:

    "…if the Justices give any wiggle room that a state may NOT recognize out of State marriages, it will do so for all legal marriages and that's NOT going to sit well with heterosexuals." I think I prefer your interpretation to my own now.

    One needle the Court will have to thread is on the recognition issue. If they rule too broadly they risk completely obliterating the public policy exception to Full Faith and Credit. If they rule too narrowly they give the states a very wide berth as far as which marriages they can refuse to recognize. So I think you're right in that the most obvious and straightforward way for the Court to rule is that neither the sexual orientation nor the genders of the prospective marital partners may be used to invoke the public policy exception. That would have the added benefit of striking down Section 2 of DOMA. The latter has always particularly irked me and has also struck me as a particularly egregious thing for Congress to have legislated: it provides the states with an excuse to invoke the public policy exception with respect to an entire class of marriages without providing any legitimate basis for doing so. As others here and elsewhere have noted (and I believe both the Ohio and Tennessee response briefs covered this), prior to the enactment of marriage equality bans, states' refusals to recognize a marriage legally performed in another state were done on a case-by-case basis and were exceedingly rare. To suddenly change that when marriage equality seemed to be impending should strike ANY judge as a being a very suspicious move.

  • 45. RnL2008  |  April 21, 2015 at 4:58 pm

    I have always had an issue with the recognition issue. How would a State be able to defend it's actions by saying we will accept Jane and John's marriage, but not Betty and Susie's marriage……anyway ya slice that it would be seen as what it is…DISCRIMINATION….and heterosexuals AREN'T going to be happy not having their marriage recognized in whatever state they lived in…..the other issue is would the State then require the couple to marry in that particular State and could they then deny Gays and Lesbians the right to marry that way……see, it can get a little murky if SCOTUS DOESN'T put this whole issue to rest this time around.

    I mean back before my wife and I got married, I thought I would be alright with the State not allowing certain couples to marry, as long as they recognized the legal marriage from another state UNTIL Texas challenged the Federal Family Leave Act because it meant they had to recognize the legal marriages from other States……and now I see how all of these little issues come to be ONE big nasty discrimination ugly package…….lol!!!

  • 46. ianbirmingham  |  April 21, 2015 at 5:10 pm

    Just to clarify – if the Question 1 analysis concludes that no state can constitutionally refuse to marry same-sex couples, then it would automatically become impossible for any state to have a public policy against same-sex marriage. At that point, Question 2 is an easy slam-dunk since no state could possibly assert a public policy exception. The effect would be to narrow the public policy exception just far enough to remove SSM from its grasp.

    Having said that, IMO it would be a great victory if the public policy exception were to be completely obliterated, and I really hope that happens ASAP.

  • 47. sfbob  |  April 21, 2015 at 5:21 pm

    The reasons usually offered for why a state could plausibly refuse to recognize a marriage solemnized in another jurisdiction essentially, as far as I can tell, boil down to "if the marriage results in what our state views as criminal activity." That would include marriages involving a minor, marriages involving two people closely related or two people, one of whose previous marriage might not have been finally dissolved. And those are cases that could readily be prosecuted on some other basis. The fact is that until the beginning of marriage equality, most states automatically recognized marriages solemnized in other states even involving couples who not only could not have married in-state but who went elsewhere in order to circumvent their home state's prohibitions. Exceptions all involved situations where there was a reasonable likelihood the state limitation would pass intermediate scrutiny to begin with.

  • 48. ianbirmingham  |  April 22, 2015 at 1:05 am

    If there is a relevant criminal law on the books (which has not already been overturned as unconstitutional), that would be enough evidence from which to infer a public policy. But it isn't the only possible source. As in Indiana, there could be a law (or a constitutional provision) which simply recites public policy, or there could be other evidence such as state administrative rules or even standard principles of American legal theory.

  • 49. sfbob  |  April 22, 2015 at 1:24 am

    Per discussions I've read, the criminal law most likely to be pertinent would be a marriage that the state would consider incestuous or else a marriage in which the state's own age-of-consent law would have been breached. Previously the public policy exception might also have extended to interracial marriages as was the case for the Lovings.

    If I understand correctly (and I may not) there is now considerable debate as to whether the public policy exception has any remaining validity to it at all. What seems pretty obvious to me is that laws like Indiana's (and I believe Idaho's as well) which simply state that "it is the public policy of this state not to recognize marriages between two men or two women" are constitutionally suspect because there is no independent justification for them. "It's public policy because we say it is" just doesn't cut it.

  • 50. Decided_Voter  |  April 21, 2015 at 2:40 pm

    I think the days of "minimizing blowback and societal fall out" are largely behind us. It's almost changing by the minute.

    I believe this will be a "big picture" decision and not a weasely one especially if the 5 from Windsor control it (which they will as long as they all share the same opinion which will make it controlling). Why? Because Lawrence and Windsor were written to "slow walk" us to equality without an explicit higher level of scrutiny which could be used to justify immediately challenging and overturning state bans. Of course, that happened anyway after Windsor and the court has seen the sky hasn't fallen and the country is rapidly accepting marriage equality and even pushing back at religious discrimination (look at IN and the polls since then). Since June's decision will be about marriage, the one thing they were trying not to take on before "the country was ready for it", there will no longer be a reason for them to not confront the heightened scrutiny question head on. After marriage, LGBT litigation will be "downhill" from here after reaching a decision on society's "pinnacle" of marriage.

  • 51. justplainkay  |  April 22, 2015 at 7:23 am

    I'll be delightfully stunned if the court rules based on equal protection with heightened scrutiny.

  • 52. DJSNOLA  |  April 22, 2015 at 7:45 am

    I do agree that we cant look at gay rights through the same prism as we do abortion rights. For some reason abortion rights will always I think be polarizing while gay rights are becoming much more accepting. For example, in general the people against gay rights are far less motivated than those who are against the right to choose. Put another way, the passion in the debate for Gay rights is in general not as high as the abortion debate. That is why opinions are changing so rapidly on the gay rights issue. People may have an opinion one way or another if you ask them, but its not going to motivate them much.

  • 53. DrPatrick1  |  April 21, 2015 at 7:56 pm

    Due process would be a broader rationale than equal protection. Case in point, polygamists would have a direct path if due process is used. I do not pretend to think they would be guaranteed victory, only that the court would be inviting this new line of cases, similar to windsor's invitation to these cases.

    Equal protection based on sex discrimination seems to be an easy win here, with direct corollaries to Loving. However, Baker may have foreclosed this option. Stare decisis would seem to frown on this approach. I suspect there will be no mention of it in the ruling.

    Equal protection based on sexual orientation seems like the most likely path. While a ruling that heightened scrutiny is needed would be welcome and would be helpful in future cases (RFRA CASES 2 years from now), this court (read as Kennedy) has been most skillful at avoiding this expansion in the past. They will again play the rational basis card, without so declaring it, and decide that the marriage bans function only to discriminate with no government purpose or need to do so. There will be paragraphs agreeing with our opponents that marriage likely evolved into a state licensed institution in order to promote the stability of families, and importantly for the protection of children. However, they depart from our opponents by adding that this same protection works exactly the same with respect to same sex headed households. After all, if having married parents helps ensure children are given the protection of two parents, then what rational reason could there be to deny this protection to certain families. Certainly not procreation, as that has never been a requirement of marriage, and even our opponents agree that any such test would be constitutionally suspect.

    In the end, we will win by what future cases establish as a rational basis with bite test. This won't be explicitly stated in this case, just as in Windsor.

    In a way this will not be as good as heightened scrutiny, as we won't be able to lean on that for easy wins in future cases. But, it will mean that this court did not state that the marriage bans could withstand rational basis. This must be seen as a win for us, as what law discriminating against gays could possibly survive rational basis if not the marriage bans!

    What do you think?

  • 54. sfbob  |  April 21, 2015 at 11:30 pm

    I doubt very much that Baker has any remaining precedential value whatsoever at this point. The reasons for this are substantial, not the least of which was that by passing DOMA, Congress created precisely the "substantial federal question" which the Court had found lacking in Baker.

    I'm not sure why polygamists would gain from a due process based decision. I can think of any number of different rational bases which would rule out the legal recognition of marriages involving more than two spouses. This is a situation where, as distinct from marriage equality bans where the right to marry, otherwise unqualified, is subject to infringement, in a polygamous situation the right to marry would be unquestioned but the right to multiple spouses would certainly not be construed as a fundamental right.

  • 55. DrPatrick1  |  April 22, 2015 at 9:53 am

    First Baker: The issue raised in Baker was sex discrimination. It was this issue, equal protection/14th amendment based on Sex discrimination, which was found lacking a substantial federal question. It is clear to me, to most of us in fact, that Baker cannot hold back marriage equality, and the reason it does not hold precendential value is due to the immense progress made in sexual orientation discrimination (Lawrence, Romer, Windsor). SCOTUS has never embraced LGB discrimination as sex discrimination. (T discrimination has yet to come before SCOTUS as far as I am aware, but I am very confident they would label that under sex discrimination just as Obama's justice department has.) I am a proponent of LGBT discrimination being viewed as sex discrimination, it just hasn't happened, and I don't think Kennedy will go there. We share see in June.

    And Polygamists: If the due process argument wins the day, then this is exactly what those who take the slippery slope approach fear. Polygamists would then rightfully claim that access to marriage is a fundamental right, just as we have, and then the government would have to meet a much higher bar to justify their exclusion. (I posit that this high bar can indeed be met when it comes to polygamists.) They would not have to tackle this. I do not argue, as it is a total falsity, that no matter how LGBT's win equality, it will open the door to others, but the right would definitely argue this and particularly if we win based on Due process.

    In the end, I think sexual orientation equal protection is the easiest path to victory. I think this eliminates a direct path to the slippery slope, and it erases Baker without violating Stare Decisis.

    I have been wrong before, at least 2 times in my lifetime…LOL

    I can't wait for June!

  • 56. sfbob  |  April 22, 2015 at 10:00 am

    I thought I was mistaken once, but it turned out I was correct after all. 🙂

  • 57. VIRick  |  April 22, 2015 at 2:00 pm

    "I thought I was mistaken once, but it turned out I was correct after all. 🙂 "

    Bob, there you go!

  • 58. David_Midvale_UT  |  April 22, 2015 at 5:52 am

    Here in HATU—The Bass Ackwards State (Utah), polygamy often has been used as an irrational slippery slope argument. The key difference is the legal definition of Similarly Situated.

    Although there are many rational arguments that could be used to justify multi-partner marriages, one would have to stretch Similarly Situated to say that a group of three or more individuals are Similarly Situated to precisely two individuals. (In the Mormon concept of plural marriage, the man was married separately but simultaneously to each of his plural wives, but the women and their respective children are considered independent families, for example, the man was expected to provide each of them a separate home when he could afford to do so.) Although multi-party contract law is well-established, a state could argue (legitimately?) that multi-party marriages are too complex to administer with a simple "fill out the form and pay your fee" marriage license process.

    The Similarly Situated argument works for same-sex couples because of clear similarity to a biologically infertile post-menopausal woman and her intended spouse.

  • 59. DrPatrick1  |  April 22, 2015 at 10:06 am

    Oh I agree that there is no slippery slope argument. Further, I, personally, am not as offended by plural relationships as my midwestern upbringing might suggest. (I can't imagine how such a relationship could work, at least for me, but I totally accept that such an arrangement might work for others, maybe even better than 2 party relationships.)

    I only say that the Due process clause opens the door to a discussion that rightfully suggests the slippery slope. Not that opening that door ends the discussion with polygamists on the same side as 2 party relationships.

    I would argue, that while we all see same-sex couples as being similarly situated, the opposition cannot even fathom why we think this. They see a clear difference, genders, as being objectively different allowing different treatment. You seem to argue that polygamists offer a clear difference, party numbers, thus an objective difference. Just as the bigots of the marriage movement today sound just like the bigots of the loving era (at least to us) some of the arguments against polygamy may seem similar to those arguments used against us.

    For the record, I am personally agnostic when it comes to polyamorous relationships. I think the arguments in favor of marriage equality have nothing to do with that issue.

    I hope those who are down-voting me realize that I have contributed to the discussion on this site for quite some time. I only ever to extend the discussion, not to parrot what surely we all think, but to bring different perspectives. I haven't seen this many down-votes since I predicted that SCOTUS would not grant cert in the appeals of the favorable circuit court rulings, and we all know how that turned out…

  • 60. VIRick  |  April 22, 2015 at 2:10 pm

    "…. those who are down-voting me …."

    DrPatrick, do not pay any attention to that feature. Your substantive contributions and extended discourses are greatly appreciated.

    Notice (even though I just told you not to) that I'm getting up-votes here just for being positive. Those up-votes are all for you.

  • 61. justplainkay  |  April 22, 2015 at 7:27 am

    I think Due Process would be the narrowest possible ruling, answering ONLY the marriage questions and not providing any support for wider ramification, as an equal protection ruling would do. Ultimately I think the justices will be willing to run the risk of emboldening polygamists (who they would ultimately shoot down if they had to) in order not to make S.O. a protected classification or one afforded heightened scrutiny. I have to believe they will be concerned about blowback. Here is a case where if I am wrong I'm happy!

  • 62. DrPatrick1  |  April 22, 2015 at 10:08 am

    I think this is a case where however we win, no matter which viable option they chose, we will all be happy, even if our predictions do not come true!

  • 63. RemC_Chicago  |  April 22, 2015 at 11:03 am

    After all of the rulings handed down by federal judges across the country that emphasized Equal Protection/14th Amendment over Due Process, I would be shocked if it got left out of the mix by the Supremes. I believe many of the observations made heretofore about their reticence on creating a new protected class and don't expect that to happen, however much I might wish for it. However, particularly with the current glut of religious freedom laws, I foresee a return to them in the future with a focus on heightened scrutiny.

  • 64. JayJonson  |  April 22, 2015 at 7:58 am

    I cannot imagine a ruling by Justice Kennedy that does not include animus among the justifications. I believe that Justice Kennedy will write the majority opinion that will be quite similar to his opinion in Windsor. It will invalidate the state bans on same-sex marriage and the refusal to recognize same-sex marriages performed out of state on the grounds that their only purpose is to demean gay people and their relationships.

  • 65. DrPatrick1  |  April 22, 2015 at 10:13 am

    I totally agree with this statement. If somehow I didn't communicate this above then I apologize. I posit that this is exactly what he will do, thus granting an equal protection violation based on sexual orientation, though I doubt he will state specifically which level of scrutiny should apply. It seems to me that in Lawrence, Romer, and Windsor he lays the foundation for some form of heightened scrutiny, just as the 9th circuit stated, but he does not come out and say it. Instead, he leaves an out for our opponents to conclude that those laws relied only on animus, thus they do not satisfy even a rational basis, as animus alone is not sufficient. It isn't that a law in unconstitutional if animus plays a role, but animus alone is insufficient, even with the very lax standard of rational basis.

  • 66. ianbirmingham  |  April 22, 2015 at 12:53 pm

    There is a strong possibility that the conventional wisdom here is wrong. In his confirmation testimony, Roberts strongly opposed Alito's view of the level of generality, specifically citing Loving v. Virginia (the right in question is not the right to interracial marriage, but rather the more general right to marry). The position Roberts has taken on this "level of generality" issue strongly predicts a positive outcome in Obergefell. Now suppose that Roberts is indeed on the "good" side of Obergefell (giving SSM a 6-3 victory). The person who decides who will write the majority opinion will be the most senior Justice within the majority… in other words, Chief Justice John Roberts will assign the opinion. It is not only perfectly acceptable but quite common for the Chief Justice to assign a majority opinion to himself. Hence the chances are excellent that Roberts – not Kennedy – will write the majority opinion. No doubt everyone will concur and dissent verbosely, but Roberts, sensing history in the making, grabs the golden ring for himself.

  • 67. JayJonson  |  April 22, 2015 at 1:11 pm

    You may think that there is a "strong possibility" that Roberts will be on the side of the angels. I think it highly unlikely. And if he does get to assign the majority opinion, I think he will try to make it the narrowest opinion possible. I would rather have an expansive 5-4 opinion by Kennedy than a straitened 6-3 opinion by Roberts. Sorry to have to keep breaking the news: Roberts is no friend of ours.

    He is a calculating little man who could conceivably vote in favor of marriage equality for the same reason he voted in favor of the Affordable Care Act, in order to maintain control of the narrative. But remember what he did to the ACA. His ruling was calculated to make it unsustainable, and as a consequence millions of people who should be eligible for ACA have effectively been kept off its rolls in the red states.

    We do not want Roberts writing the decision in Obergefell.

  • 68. scream4ever  |  April 22, 2015 at 2:03 pm

    If Roberts doesn't concur with the opinion of the 5 justices but still wants to be in the majority he can write a concurring opinion. As long as 5 agree to the strong points of the ruling that will be the opinion which stands.

  • 69. VIRick  |  April 22, 2015 at 10:34 pm

    "As long as 5 agree to the strong points of the ruling, that will be the opinion which stands."

    Correct, we'll have ourselves a much stronger ruling with a 5-4 decision, without Roberts, than we would if he were to write the majority opinion on a 6-3 decision, simply because he'll present some kind of mealy-mouthed, narrow, half-decision.

    So, at best, plan on a 5-1-3 decision, with Roberts in concurrence with the majority.

  • 70. ianbirmingham  |  April 22, 2015 at 10:56 pm

    This idea of Roberts weakening the decision doesn't match up with the reality of how Supreme Court rulings are evaluated. A "holding" of the case is any direct logical path from the facts of the case to the outcome of the case that at least five Justices agree with.

    Suppose that Roberts writes a majority opinion that four or five other Justices sign onto. The logic of that opinion will become a holding of the case. Suppose that Kennedy writes a separate concurring opinion that four other Justices (not including Roberts) sign onto. The logic of that opinion will also become a legally binding holding of the case. So if Kennedy wants to write his own soaring prose for the history books AND have it be a legally binding holding of the case, and four other Justices are willing to sign their names in agreement, then he can still write whatever he wants. Both his opinion and the Roberts majority opinion will become legally binding precedent, and judges will then be able to pick whichever of these rationales they prefer for judicially enforcing the legal right to marry.

  • 71. JayJonson  |  April 22, 2015 at 2:53 pm

    DrPatrick1, my post re animus was supposed to be in reply to justplainkay's post some 30 posts above. I don't know why it appeared so far below it. In any case, nothing you posted would make me think anything other than that you would agree with me on this point.

  • 72. 1grod  |  April 21, 2015 at 2:16 pm

    Off topic: Following last March 2 NE District Court's preliminary injunction against the ssm ban in Waters v Ricketts, [6 out-of-state and 2 in-state couples] and grant of a stay, the 8th Circuit Appeals Court scheduled a hearing on affirming the injunction for week of May 11. On April 1 Nebraska filed its brief: http://www.scribd.com/doc/260486806/15-1452-Nebra… and on April 20 plaintiffs filed their brief: http://www.scribd.com/doc/262500149/15-1452-Plain… [ACLU]

  • 73. VIRick  |  April 21, 2015 at 2:26 pm

    Speaking of "The Sequel:"

    Wisconsin Same-Sex Couple Asks Court to Order Both Names on Child’s Birth Certificate

    MADISON, WI — A same-sex couple who sued for the right to marry in Wisconsin in "Wolf v. Walker" wants a federal judge to mandate that both parents’ names appear on their children’s birth certificates. Karina Willes and Kami Young were among a group of same-sex couples who prevailed upon US District Judge Barbara Crabb to legalize same-sex marriage in Wisconsin on 6 June 2014.

    On 20 April 2015, they filed a motion with Judge Crabb asking her to order state records officials to place both parents’ names on their children’s birth certificates. They say they’ve tried unsuccessfully to persuade the state’s Vital Records Office to amend their daughter’s birth certificate to include both of their names and that Judge Crabb needs to clarify that the presumption of parenthood in Wisconsin applies equally to both heterosexual and homosexual married couples.

  • 74. FredDorner  |  April 21, 2015 at 4:21 pm

    I made a brief comment on this in a thread yesterday. I live in Wisconsin and while I'm not surprised the Walker administration is both dimwitted and bigoted on the issue of presumptive paternity, they're guaranteed to lose just like Iowa did when it tried to pull the same stunt. This isn't even a close call since gay couples are in the exact same circumstance as a straight couple where presumptive paternity applies.

  • 75. VIRick  |  April 21, 2015 at 4:44 pm

    Fred, plus, having already struck down the ban in its entirety, we can count on Judge Crabb to do the right thing when she issues her clarification order.

    I can almost hear her question to the state: "What part of 'entirely' is still not clear?"

  • 76. sfbob  |  April 21, 2015 at 2:45 pm

    Somewhat off-topic but fun to read anyway is this:
    http://www.scotusblog.com/2015/04/a-reporters-gui

    Basically it's a guide for reporters who will be attending next Tuesday's hearing, explaining the protocols and procedures of the court and going over the cast of characters.

  • 77. wkrick  |  April 21, 2015 at 3:56 pm

    Not sure if this has been posted yet, but here it is just in case…
    http://www.washingtonpost.com/news/volokh-conspir

    Here is an excerpt:

    As the Supreme Court considers the constitutionality of laws banning same-sex marriage later this month, few have noticed that the case can easily be resolved under existing precedent.

    Laws banning gay marriage are unconstitutional because they discriminate on the basis of gender. If same-sex marriage is forbidden, Anne is allowed to marry Bob, but Charles can’t. Charles is denied the right to marry Bob, solely because Charles is a man. Denial of a legal right solely because of gender is the very essence of sex discrimination.

    Laws banning gay marriage discriminate on the basis of gender even more clearly than on the basis of sexual orientation. Anne is still allowed to marry Charles, even if one of them happens to be gay or lesbian. Bob is denied that right whether he is gay or not. The Supreme Court has long held that laws discriminating based on gender must be presumed unconstitutional and invalidated unless the government can prove that they can pass rigorous, heightened judicial scrutiny.

  • 78. FredDorner  |  April 21, 2015 at 4:26 pm

    A few of the pro-equality rulings have noted that it is a form of gender discrimination and could be struck down on that basis, while other courts have explicitly discounted that interpretation. To me it obviously is gender discrimination on its face, although the intent is to harm gay couples through gender discrimination because no direct inquiry is made of their sexual orientation. It's exactly parallel to the intent to harm mixed-race couples through racial discrimination. The state simply has no legitimate interest in the relative race or relative gender of one's spouse, nor does it have any legitimate interest in one's sexual orientation.

  • 79. FredDorner  |  April 21, 2015 at 7:46 pm

    Judge McShane's ruling in Oregon was one which discounted the gender discrimination analysis, but he naively missed the bigot logic of "equal application means no discrimination" which Judge Shelby noticed in his Utah ruling.

    Note that the courts which have observed that it's gender discrimination didn't need to go there since the ban failed a rational basis test. So Shelby says: 'Applying the same logic, the court finds that the fact of equal application to both men and women does not immunize Utah’s Amendment 3 from the heightened burden of justification that the Fourteenth Amendment requires of state laws drawn according to sex. But because the court finds that Amendment 3 fails rational basis review, it need not analyze why Utah is also unable to satisfy the more rigorous standard of demonstrating an “exceedingly persuasive” justification for its prohibition against same-sex marriage.'

    Also note that Judge Smith in the 8th circuit in Missouri struck down their ban both because it's gender discrimination and it violates the due process fundamental right to marry .

  • 80. DrPatrick1  |  April 21, 2015 at 8:34 pm

    Ruling based on sex discrimination was already abandoned by SCOTUS in the Baker dismissal. While that weak precedent should and might be overruled, the court will skip this with a ruling based on sexual orientation.

  • 81. FredDorner  |  April 22, 2015 at 1:16 am

    As Ginsburg noted Baker v Nelson predates most of the court's current doctrine on gender, and it predates by 5 years the treatment of gender with heightened scrutiny. It has no relevance today particularly after the Windsor ruling, and anyway the court declined to grant cert to any of the state appeals of pro-equality rulings….and the states all cited Baker.

  • 82. DJSNOLA  |  April 22, 2015 at 7:57 am

    Honestly we dont want a ruling on sex discrimination. We want as much focus on sexual orientation and anything that can give us as a group more legal standing and scrutiny. Yes it is sex discrimination but any reasonable purpose can see what the true intent was with these law.

  • 83. F_Young  |  April 22, 2015 at 8:44 am

    DJSNOLA: "Honestly we dont want a ruling on sex discrimination."

    Can you, or any other commenter here, give examples of legal situations where a SCOTUS ruling that discrimination based on sexual orientation is a form of sex discrimination would not provide LGBs as much protection as if SCOTUS found that sexual orientation was an independent suspect class deserving of heightened scrutiny? I can't think of any right now.

  • 84. DrPatrick1  |  April 22, 2015 at 10:27 am

    I agree, that a ruling which clearly states that discrimination based on the gender of the person's partner is sex discrimination, and thus subject to heightened scrutiny is just as valuable as a ruling which clearly states that sexual orientation is an independent suspect class deserving of heightened scrutiny.

    However, if, as is more likely, an ultimate ruling based on sex discrimination with respect to marriage happens, it will likely look something like: Woman can marry a specific man, but another man cannot, thus the discrimination is clearly based on sex, thus is subject to heightened scrutiny.

    This helps us when the discrimination is as clear as in marriage, but when the SO discrimination is more subtle, it helps us less than a SO declaration would be.

    (If Kennedy had clearly stated that sexual orientation was a suspect class, we likely would not need to be having all these debates today, as this would be settled law in the US for some time. However, if in Lawrence he linked it to sex discrimination, as it seems to me it surely was, I do think that the marriage issue would be seen as something different and thus might have had an extended debate. Who knows…?)

  • 85. A_Jayne  |  April 21, 2015 at 7:31 pm

    OT – Excellent news out of Nevada today – from LGBTQ Nation:
    http://www.lgbtqnation.com/2015/04/nevada-state-a

    And the long road of NV Assembly Bill 375 – restricting bathroom access to "birth-gender-assignment" – check out the last line – it went down in defeat today!

    Bill History

    Mar 17, 2015 •Read first time. Referred to Committee on Education. To printer.

    Mar 19, 2015 •From printer. To committee.

    Apr 08, 2015 •From committee: Without recommendation, and rerefer to Committee on Judiciary.
    •Rereferred to Committee on Judiciary. To committee.

    Apr 14, 2015 •From committee: Amend, and do pass as amended.

    Apr 15, 2015 •Taken from Second Reading File.
    •Placed on Second Reading File for next legislative day.

    Apr 16, 2015 •Read second time. Amended. (Amend. No. 535.) To printer.

    Apr 17, 2015 •From printer. To engrossment. Engrossed. First reprint .
    •Taken from General File. Placed on General File for next legislative day.

    Apr 20, 2015 •Taken from General File. Placed on General File for next legislative day.

    Apr 21, 2015 •Read third time. Lost. (Yeas: 20, Nays: 22.)

  • 86. Rick55845  |  April 22, 2015 at 5:41 am

    I'm glad it was defeated, but the voting was uncomfortably close. I really cannot imagine why some people are so concerned about the birth genitalia of others, particularly within the private confines of a bathroom stall. And, I wonder, which restroom would they demand that a hermaphrodite use?

  • 87. JayJonson  |  April 22, 2015 at 6:49 am

    Yes, the vote was very close for a state like Nevada, which depends so much on tourism. These bills obvisously come from some coordinated conservative think-tank and are popping up all over the country. They play on people's fears, especially when it comes to children. But it is the kind of bill that actually promotes bullying and can lead to depression and suicide, much like reparative therapy does. The people promoting these bills have blood on their hands. I wonder if they know that and just don't care, or if they know it and intend the bills to have the results that they will.

  • 88. A_Jayne  |  April 22, 2015 at 7:14 am

    "I wonder if they know that and just don't care, or if they know it and intend the bills to have the results that they will."

    They don't know it – perhaps rather, they don't believe it. But regardless, they don't care. For them, it's all about "me, me, me." They want to dictate that everyone should live life by their instructions and be happy about it.

  • 89. DJSNOLA  |  April 22, 2015 at 8:00 am

    Exactly, this is a bill that really isnt about real world enforcement its about codifying in law that someone is less than. And yes these laws all come from a central think tank. John Oliver had a great segment on this last season. It was very eye opening.

  • 90. A_Jayne  |  April 22, 2015 at 6:52 am

    Re: "the voting was uncomfortably close" –

    Voter turnout last election was dismal in NV – so, of course, those who always make sure they vote, the TPers, ended up with a much greater proportion of representation in the statehouse.

    I wonder how (or why) anyone cannot understand that some people are born with a life reality that is not identical to theirs. But perhaps even more, why some (RWers) think those not identical to them (i.e.: trans* folks) must still live life as if they were just like them – and simply because they (RWers) say so. WTF!

  • 91. mu2  |  April 22, 2015 at 12:58 pm

    But think of all the employment opportunities! Every bathroom would need a (or 2) junk inspectors…why, it would essentially end unemployment! Not sure who would be paying for all those APEs (American Physiology Evaluators) but that's just details, details, details.

    I've been to at least half a dozen countries where everybody regardless of anything except the need to pee uses the same bathroom…and nobody gives a shit (er, so to speak) who's in there.

  • 92. davepCA  |  April 21, 2015 at 11:09 pm

    Just watched an AWESOME opening segment on "The Daily Show" about how the current crop of Republican candidates are dealing with the question of marriage and same sex couples today, compared to a few years ago. Hilarious as usual. Check it out!!

  • 93. Sagesse  |  April 22, 2015 at 4:00 am

    Speak Now: Prop. 8 Decision Will Pave Way for National Marriage Victory [The Advocate]

    In this excerpt from his new book, Speak Now: Marriage Equality on Trial, Kenji Yoshino says the case against California's Proposition 8 was the first time antigay prejudice was put on trial — and lost.
    http://www.advocate.com/commentary/2015/04/21/spe

  • 94. F_Young  |  April 22, 2015 at 4:42 am

    From the Closet to the Altar
    Courts, Backlash, and the Struggle for Same-Sex Marriage
    https://global.oup.com/academic/product/from-the-

    This is a publisher's promotional information about a book by historian and legal expert Michael Klarman, in case it has not been posted here before.

  • 95. David_Midvale_UT  |  April 22, 2015 at 6:05 am

    2012. . . time for a major update. . . think about opportunities for December gift-giving.

  • 96. palerobber  |  April 22, 2015 at 11:52 am

    anyone have a rundown of people who'll be live-blogging / live-tweeting oral arguments?

    is there already a hashtag designated?

    thanks in advance.

  • 97. ianbirmingham  |  April 22, 2015 at 12:08 pm

    The king of this mountain is SCOTUSblog.com and that's where you should be.

    There might be some carpetbaggers (like CNN) – ignore them.

    SCOTUSblog will have the full audio posted pronto so you can hear the whole thing.

    SCOTUSblog will liveblog until the full audio comes out. Be there.

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