Mostly Sure About the SSM Ruling

The cases are consolidated and the petitions for writs of certiorari are granted limited to the following questions: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? A total of ninety minutes is allotted for oral argument on Question 1. A total of one hour is allotted for oral argument on Question 2. The parties are limited to filing briefs on the merits and presenting oral argument on the questions presented in their respective petitions.

Rick Hasen thinks the phrasing of the question potentially troubling for same sex marriage advocates (the first  question can be answered "no," right? that is if the state has no marriage). But, I think Michael Dorf is basically correct, particularly since this "no marriage" thought experiment isn't the situation.*  Also, agree with Nina Totenberg (on Rachel Maddow) and others that note that the justices cannot really believe they can in effect put the toothpaste back in the tube after allowing all those court rulings striking down bans stand.  All those same sex marriages are out there. My "go to" guy on SSM and the courts explains some more how the USSC has basically played a "key role" in creating the inevitable here. 

I'm pretty sure -- more than than regarding the result in the latest stupid ACA lawsuit -- that same sex marriage will be deemed a constitutional right (however you wish to phrase that). I would be somewhat shocked actually if they don't hold that. Not exactly sure how they will go about it. Note as well that "same sex" marriage, not "gay" marriage seems to be the favored wording here, including in Holder's announcement of support. Finally, it seems more reasonable than not that somehow Roberts will join the majority though he might somewhat concur in judgment.

[Update: One person, who also has written on the "adding insult on injury" nature of mini-DOMAs that I think deserves a bit more attention, suggests the USSC might only decide the recognition issue.  He has already written in support of a broader decision, but this does touch upon the "right to stay married" argument he has made. Problems -- this doesn't cover all of the plaintiffs, it broadens marriage rights in a different way and reduces state discretion (the alleged charm here) in some fashion in a wider range of marriage cases and would put into question the broader rulings of all of the appellate courts that have decided already. And, is there something special about same sex marriages that in theory would allow only non-recognition from other states? So same sex couples would have some sort of second class status? Eh.]

The oral argument provides a chance to go over once again the standard stuff.  So, we have the Catholic response on how the "essential meaning of marriage as between the two sexes" -- so, the procreation part isn't essential? No, Catholic doctrine overlaps with the experience of the law here -- they are concerned about the consummation of marriage though you might have fewer people in this country who agree with their stance on birth control that accepts the literal idea that someone with some physical condition that makes an erection impossible cannot get married.  Clearly, not using artificial birth control -- which to them degrades the "uniting" here severely -- is not essential.  Or, not having easy divorce.  Sex is though. I think they are better off worrying about the other stuff; it surely is likely to affect a lot more marriages.

Some of the other standard tropes are cited in a footnote.  Another would be that we should trust the political processes here.  This might be more easier to take if not raised by those who strike down, somewhat dubiously, multiple major campaign finance laws. Free speech, you say? I give you the right to marry and equal protection.  The presence of animus is also apparent unlike a slew of marriage regulations (some problematic even without such baggage as was NY's ban even though it was not backed up by a state constitutional amendment, if perhaps somewhat less blatantly so) that were handled differently. And, the time has come -- same sex couples have in effect lived as married couples for quite some time. We have had decades to treat them equally.  It's time to do this too.

As Gay USA's Andy Humm noted on his Facebook page, even a win here will not mean nirvana, the time to truly exhale. There will be, there is, blowback.  A lot of hate and sometimes even horrible violence. Religious freedom exemptions that single out certain groups. The need to fight for civil rights laws akin to those in place for race and sex. The fight for transgender rights. But, a Loving v. Virginia for a new generation is of fundamental importance.  He also fears along with others that a win here will help cover a lousy ruling in the ACA lawsuit.

Sigh. This is after all the Roberts Court.

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* At Dorf on Law, it is suggested that one or more retrograde states might try this "getting out of marriage business" approach and it is a standard reply of some when this matter is debated. Unlike private schooling, however, a state marriage license does not have a ready private analogue for all those benefits and obligations involved.  And, you will still have to determine if such and such a couple will get them, even if licenses aren't provided. Not only would that be more complicated, you will still have the basic question of treating same sex couples equally during state action.  Real life is not libertarian thought experiments anyway. 

Someone also wonders how marriage is a "fundamental right," which is more a matter of either not knowing what the term means or debating legal terminology (akin to "substantive due process).  The matter has long been a given, marriage a basic civil right deemed fundamental by most people. The debate is over marriage's reach; see Turner v. Safley, e.g., for why marriage is so special and thus applicable to SSM.

We will also have slippery slopes or libertarian types who deem it irrational to protect this and not marrying five people or your sibling. For a "developing social understanding" approach that notes how same sex relations is not on par with incest (etc.) see here.  Others can also take the common sense sentiments that sex or sexual orientation classifications are different in various ways than number or family status as true. Nepotism laws need not be chucked to uphold civil rights for GLBTQ either. 

Update: A recent new wrinkle, which this essay argues the Supreme Court should at least address, is the claim that there is some "domestic relations" exception -- even regarding things touching upon the 14A -- that removes federal court jurisdiction.  The essay (from someone representing a conservative organization)  for some reason skips over the Newdow case, which expressly dealt with the question -- it expressed a prudential avoidance rule in certain cases, but recognized there would be a few cases where it was "necessary to answer a substantial federal question that transcends or exists apart from the family law issue" such as race [or sexual orientation] discrimination. No sale.