With the announcement that SCOTUS is finally going to deal with all of the growing pile of appellate rulings on marriage equality there is an anticipation of victory among gay rights advocates and our friends. Many people are assuming that the inevitable outcome of this review will be the same sex equivalent of Loving vs Virginia in which the court swept aside anti-miscegenation statutes. They expect to see a clear ruling that marriage between people of the same sex in a fundamental constitutional right applicable to all citizens regardless of which state they live in. That is what I hope will result, but I am not entirely convinced that it is inevitable.
The first page of a petition seeking Supreme Court review is the most important. It sets out the “question presented,” the one the court will answer if it takes the case.
The justices do not ordinarily tinker with the wording of those questions. But on Friday something unusual happened: In agreeing to hear four same-sex marriage cases, the court framed for itself the issues it would address.
Lawyers and scholars scrutinized the court’s order with the anxious intensity of hypochondriacs attending their symptoms. Some saw an attempt by Chief Justice John G. Roberts Jr. to elicit a ruling that would stop short of establishing a nationwide constitutional right to same-sex marriage.
What is happening here is that the court has consolidated four separate cases for the purpose of this review. They all come from the 6th circuit which has taken an anti-marriage equality position. Each of these four petitions originally came with their own presenting questions. To some extent what is being done here is to pull all the cases together into a common issue. However in doing so they came up with two related but separate questions.
The court’s first question: “Does the 14th Amendment require a state to license a marriage between two people of the same sex?”
The second: “Does the 14th 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?”
If the court were to give an affirmative answer to the second question that would seem to render the first one moot. If a state is required to issue marriage licenses to same sex couples, then surely it is required to recognize marriages performed in other states. The speculation that is being raised is that a court majority could answer yes the the first question and not to the second. This would result in the sort of middle of the road, split the baby in half, approach that they took in Windsor and set off the ensuing string of contradictory appellate rulings.
The court has scheduled separate arguments on both questions. There really is not much question that there is a division in opinion on the court. They have been kicking the can down the road in search of a majority position. It does seem plausible that they have not already achieved a clear majority consensus on the matter and are just going through the proper procedure so that they can issue a ruling that they have already agreed to. I do not think that the final opinion has been written yet. Loving was a decision issued by the Warren court. The Roberts court is a very different state of affairs.
What would a middle of the road ruling of national recognition but not national licenses mean to people. Obviously a couple living in Alabama could take a trip to California and get married. When they returned home they should be able to heave that marriage registered. However, if you look at all of the weaselly ways that right wings states have attempted to undermine abortion rights, it doesn't seem far fetched to imagine efforts to give out of state marriages some sort of second class status with less than equal rights.
At this point the train is headed down the track. Oral arguments may give further hints about what is going on, but we won't know anything for certain until a final ruling is issued.