Next month will bring the verdict by the US Supreme Court on the same-sex marriage case. Here is my entirely speculative narrative of what I think will happen, based on the hearings and my perceptions of the justices’ views. The fact that the US Supreme Court did not take up any of the challenges to same-sex marriage cases as long as US Appeals Courts across the country upheld them suggests to me that the Supreme Court was deeply split on what to do about this issue.
It takes four yes votes among the nine justices to agree to hear a case. The four justices who are very likely to favor the right of same-sex marriage (Kagan, Sotomayor, Ginsburg, and Breyer) had no reason to agree to a challenge of the Appeals Courts verdicts as long as they were going their way. They could just wait and see it becoming a fait accompli across the nation while those deeply opposed (as I think Alito, Scalia, and Thomas are) may have felt that there was a real risk that either Kennedy or even Roberts might go against them and this would end up with the US Supreme Court giving the stamp of approval to it. They may have preferred to duck having to take a stand on the issue as long as they could.
But as soon as the Sixth Circuit upheld the right of states to not allow same-sex marriage and not recognize such marriages performed by other states, the four in favor of it must have felt they had to move and voted to accept the case.
I suspect that their side will draft an initial opinion that will try for the maximal outcome, that states must recognize the right of same-sex couples to marry and also recognize marriages legalized in other states. They will try to win over Kennedy and Roberts to their side but if they fail (as I fear they might), then they will try for a fallback position of allowing states to decide if they want to allow same-sex marriage or not (making the rules of marriage a states-rights issue), but requiring recognition of marriages contracted elsewhere under Article IV of the US Constitution that requires states to respect the decisions of other states unless there is a compelling reason not to. This was something that was even floated by Alito and Scalia during the hearings suggesting that it is something that might win over Kennedy and Roberts. While this effectively results in same-sex marriage being legal across the nation as long as even a single state allows it, the justices opposed to such marriages can say that the court did not formally give its sanction to it.
This fall back position is not without its own complications. For one thing it will now require couples in some states to go to others to get married, which is unfair and tedious, but maybe they could go to states where they would also like to honeymoon, thus killing two birds with one stone.
The more complicated problem is what to do with those couples that already got married in states where the federal courts declared that the state bans were unconstitutional. Those bans now get reinstated and this puts those marriages in a state of uncertainty Are those marriages still legal or will those couples also have to go to other states and get married again? And what of any actions taken by those married couples in the interim after the first marriage but before the second marriage? Are those actions legally valid?
Maybe the prospect of having to clean up such a mess may result in either Kennedy or Roberts saying to hell with it, lets uphold the right to same-sex marriage and be done with this issue once and for all, especially since the nation and the world is rapidly moving towards acceptance anyway.
That to me is the most hopeful scenario by which the court decides in favor of same-sex marriage. Let’s see.
As much as I would like to see the SCOTUS rule that there is no compelling interest for the state to prevent same-sex couples from getting married, I suspect that the result will be that they will rule that marriage is the province of state level governments. But that states must recognize marriages performed in other states.
We saw the divorce laws go the same way. After 1931 Nevada only required a residency of 6 weeks before applying for divorce. Most states required at least one-year of residency before even being able to apply. Because of cheap travel, by 1940 roughly 5% of all divorces in the US were performed in Nevada. Consider that Nevada only had a population of 110,000 people, or 0.08% of the population of the US. Within 30 years more states were greatly relaxing their divorce requirements until we have all states allowing no-fault divorce and residency requirements are reduced.
I suspect the SCOTUS will effectively bail on the issue, cowards that they are. They will refer it back to the states, but also rule that states must recognize marriages from other states. This will certainly initiate lawsuits in state courts where the federal courts ruled that the state laws which prohibit same-sex marriage were illegal.
There will be quite a few people who have been married since those rulings, and afforded the rights of those marriages, who are now going to be denied those rights. What happens in a state where a same-sex marriage was legal for a time, one partner has died, and now the marriage is voided? Does the survivor now owe an estate they cannot claim any wealth they temporarily inherited? Shades of Jarndyce v Jarndyce, the estates will be fought over until nothing is left.
But I doubt that the SCOTUS will be overly concerned with their plight. The majority will probably feel that when people rush into unsettled law, they deserve what they get.
Mano,
I’m going to go way out on the limb and predict a 7-2 or possibly even an 8-1 vote (I’d go 9-0 but I think there is at least one crazy on the court. Here’s my thinking.
This will be a historic vote on the scale of Brown v. Board. Since a Supreme Court Justice serves for life and has no fear of backlash (there will be a few nut jobs screaming impeachment, but that will get no traction) from their vote, history will be the deciding impulse here. The justices who would normally cling to the far right must dwell on what the history books will say about them 50 years from now. The Justices are steeped in legal history and they understand how those on the wrong side of History are reviled in law schools across the nation.
I predict that all Scalia, and possibly Alito will be the one or two holdouts willing to say history be damned.
Jeff
Jeff,
I hope you are right! A ringing endorsement of same-sex marriage would be delightful.
Both Scalia and Alito were balked pretty hard at SSM in the courtroom so personally I doubt that they are going to switch. Clarence Thomas is even further to the right of Scalia and Alito. Kennedy seemed pretty sympathetic, especially on the realm of children because in the DOMA case he recognized that children are hurt by the lack of marriage between their parents. With that mindset, I would be shocked if Kennedy went the other way.
My guess is 6-3. Roberts seems a bit wary of public opinion and history. But the other conservative justices, nah.
IANAL, but when California passed Prop. 8, banning SSMs (with the help of a bunch of out of state Mormons the LDS church bussed in, fucking assholes) after the state Supreme Court had allowed them, those couples had been legally married at that time, so they remained married even with the ban in place. I don’t see how anyone could force marriages to be dissolved if they were originally formed legally.
The difference is that a state court ruled Prop. 8 unconstitutional while in a number of regions it was the federal court which struck down laws preventing SSM. Many of the states still have legislation on their books banning SSM,
IANAL, but my understanding is that If the SCOTUS rules that the federal courts were incorrect, then it’s as if the rulings never took place. The state laws apply, and have always applied, so any SSM in those states are void. Unless the SCOTUS specifically addresses the issue of what happens to the marriages which were performed in states where a federal court struck down a state law, I fear that the marriage licences issued won’t be valid. Which will lead to lawsuits in the state courts. However, I would love to hear a lawyers opinion on this if there is one following this thread.
On the other hand, looking at this from a purely political and cynical view, if the SCOTUS allows SSM, there will be a huge turnout in 2016 of conservative voters who will be mad about the decision. Believe me, the right-wing noise machine will beat this horse for the next 30 years. By allowing SSM (but voting against it) they can show their conservative credentials while giving a new rallying cry for the theocrats. At the same time the history of this court will show the landmark decision of allowing SSM. So, while Scalia and Alito will probably vote against any SSM, they might be able to have their cake and eat it too.
If the SCOTUS says that states control marriage and states don’t have to recognize marriages from other states, this becomes a net political gain for the democrats. The unfairness of a ruling like this might appease the theocrats, but it would also make it very easy for the democrats to rally about the basic unfairness of the decision. A completely negative ruling will push fence-sitters to the pro-SSM camp simply because it seems very unfair for a lot of people to have been given rights, which were then stripped away.
So, from a political standpoint, a 7-2 ruling, or even 6-3 ruling, might be possible.
But I still think they are going to punt.