Supreme Court Audio from Today’s Oral Arguments Now Available — Updated With Reactions

Jim Burroway

April 28th, 2015

The Supreme Court has posted audio of today’s marriage oral arguments. The first question investigates whether bans against same-sex marriage violate the Constitution of the United States. You can listen below, or click here to download the file as MP3, Windows Media, or RealAudio.

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The second argument pertains to whether states are obligated under the U.S. Constitution to recognize a same-sex marriage that was lawfully obtained in another state. You can listen below, or click here to download the file.

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UPDATES:

Transcripts for both questions have also been posted at the above links.

Buzzfeed’s resident self-described law dork Chris Geidner summarizes it all this way:

A 5-4 vote in favor of same-sex couples’ marriage rights appears to be the most likely outcome, although Chief Justice John Roberts’ vote shouldn’t be counted out.

But SCOTUSblog’s Kevin Russell weighs whether a compromise ruling might be in the works:

There is some reason to wonder whether the Chief might be angling for a compromise in which the states win the first question (i.e., they do not have to permit same-sex marriages to be performed in their states) but lose the second (i.e., they would have to recognize same-sex marriages performed in other states). It’s very hard to read the Chief, but he did ask questions in the second argument expressing some skepticism over the fact that states don’t, in fact, deny recognition to any marriage that does not conform with state law, except same-sex marriages. And, as I mentioned, Justice Scalia asked questions suggesting he might think there was a reason based in the text of Article 4 that would justify ruling for the couples on recognition but not the right to marry. So one could imagine a potential compromise that would effectively allow same sex couples to get married in states that allow it, have their marriages recognized elsewhere, but not have the Court issue a decision that has broad implications for other kinds of sexual orientation discrimination.

On the other hand, Justice Kennedy’s near silence in the second argument suggests that he did not think that the second question was likely all that important. The only significant question he asked was something like “if we assume states have a sufficiently strong interest that they do not have to allow same-sex marriages in their own state, doesn’t that necessarily mean the states have a strong enough interest to permit them to refuse to recognize same-sex marriages from other states?”

Robert Barnes and Fred Barbash at the Washington Post wondered about the split-the-baby scenario as well:

If states are forced to recognize same sex marriages performed elsewhere, Roberts suggested, it would be “only a matter of time” before same sex marriage settled in as the national norm. It would effectively allow “one state” or a minority of states, to “set policy for the nation.”

At the same time, the Roberts’ line of questioning suggested he did not view that possibility with great alarm, at least as an alternative to a court decision holding that all states must permit same sex marriages within their borders.

But back to the possibility of striking the bans outright, we’ve often looked at Justice Kennedy as the critical swing vote. But is Chief Justice John Roberts another possible swinger? Greg Stoher and Mark Drajem at Bloomberg found his questioning worth noting:

Chief Justice John Roberts directed the bulk of his questions at same-sex marriage proponents during the argument. Although Roberts voted against gay rights two years ago, marriage advocates hold out hope of winning his vote this time.

“If you prevail here, there will be no more debate,” Roberts told Mary Bonauto, the lead lawyer arguing in favor of same-sex marriage rights. Shutting off debate “can close minds.”

He added, “people feel very differently about something if they have a chance to vote on it.” Roberts also said the “fundamental core of the institution is the opposite-sex relationship.”

The chief justice shifted course later, suggesting he was open to joining an opinion that didn’t focus on sexual orientation and instead struck gay-marriage bans as unconstitutional gender discrimination.

“If Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t,” Roberts said. “Why isn’t that a straightforward question of sexual discrimination?”

MattNYC

April 28th, 2015

Norman Goldman had a great take on this in the second hour of his radio show. He was much more positive than a lot of the MSM reporting. He thinks there’s a 40% chance that Robert writes a separate concurring opinion based on sex discrimination rather than applying the equal protection established by the 14th Amendment.

Lord_Byron

April 29th, 2015

While a compromise position wouldn’t be as bad as saying the states can ban marriage-equality it would still be a shit decision in my opinion. It would require some people, i.e, those in the deep south, to travel hundreds of miles to get a marriage license.

Richard Rush

April 29th, 2015

If the court goes with the “compromise decision,” then it seems obvious that all state laws or constitutional amendments that had been struck down by Federal courts would immediately go back into effect. So, we would then return to having only a small number of states with marriage equality. And, I have no doubt that some of those states would seek to nullify all of the marriages that had occurred during the interim.

Timothy Kincaid

April 29th, 2015

Any “compromise decision” would be a nightmare, and not just logistically.

It would be, in effect, the Supreme Court affirming the right of states to discriminate against a segment of the population. It would say, sure all citizens have equal access and due process except for gay citizens, those you can treat differently.

It would go far beyond marriage. Texas, for example, might decide that gay people could not be allowed to own property jointly, or could not be allowed to jointly hold a credit card.

I think it highly unlikely that SCOTUS will go down this road.

customartist

April 29th, 2015

Chief Justice John Roberts seems to want to decide this issue on Gender Discrimination alone, albeit legitimate, while avoiding the more monumental and core issue in this entire endeavor:

Do Gay people have the Right to Constitutional Equal Protection, or do they not?

customartist

April 29th, 2015

Timothy,
You are exactly correct, yet in this unfortunate scenario where SCOTUS determines that Gays MAY be separated from the Constitution, they will not be simultaneously giving us a reduction in our tax liability, now will they?

We ARE NOT 3/5ths of a citizen.

Mark F.

April 29th, 2015

I think the sex discrimination angle is a good one, and also would not be surprised to see Roberts go that route. But the vote is most likely 5-4.

Mark F.

April 29th, 2015

@Customartist. The anti- slavery people actually wanted slaves to not be counted at all for purposes of Congressional representation. The 3/5 ths thing was a compromise, had nothing to do with anyone actually thinking slaves were literally 3/5 of a person. The slave states wanted them counted as a full person so they’d have more Congressmen.

Maurice Lacunza

April 29th, 2015

If states are allowed to deny marriage, but must accept other states, that puts a burden on gays to travel out of state to exercise the same rights as straight people. It is still discrimination. Why should gays be put out of state just to enjoy their constitutional freedom?

It is all or nothing. If we are denied our rights, then I say we come down hard and protest like nothing they have ever seen. This is ridiculous.

CPT_Doom

April 29th, 2015

I keep thinking there will be a different split decision, namely, that states cannot discriminate against same-sex couples (question 1 argued), but have leeway on recognizing marriages performed elsewhere (question 2). Having question 1 ruled in our favor would make question 2 moot as far as same-sex couples are concerned, but would still let states refuse, say, polygamous marriages from overseas.

casus fortuitus

May 2nd, 2015

This whole “until 2001, no society ever recognised same-sex marriage” line of argument that Alito seemed obsessed with is nonsense. Even if it were true, it doesn’t provide the Court with an excuse not to apply today’s law. And it’s simply not true, as even cursory research shows. Counsel for the petitioners should really have been better prepared for this.

Also, Alito doesn’t understand democracy, if he’s convinced by his own argument that it must be for the ballot box and never for the courts to resolve a question like same-sex marriage. The only thing that distinguishes it from mob rule is respect for the fundamental human rights of everyone, so that the majority can never use its de facto legislative supremacy to oppress any minority. But the only remedy that members of minorities have is judicial – by definition, a minority can’t win a fight at the ballot box against the majority. There’s no more important or appropriate role for the courts than to enforce the fundamental rights of the marginalised, the despised and the disenfranchised.

I could go on, if I thought there was any point.

I’ve studied law in the UK, so perhaps I’m just absolutely ignorant of the way the law is practiced in the US, but I have to say, I’m surprised at the quality of legal argument here.

enough already

May 2nd, 2015

Maurice Lacunza,
I know the ideal form of protest for us, as queer people – all of us actually getting out and voting.
Not likely to happen, though.

Casus Fortuitus,
I’m German, have lived in the US for decades and, yes, American law has nothing to do with justice. Oppression of minorities and mob rule pretty much are the way things are done here.
It’s the ‘first-past-the-post’ election system combined with a two-party scheme adulterated by voter turnout.

Conservatives always vote, young women and gay men pretty much don’t.

No matter how good the US Constitution looks on paper, in truth, how Justice Kennedy feels the morning this decision is made by the Supreme Court is all that matters.

Eric Payne

May 2nd, 2015

What I found discouraging? It seemed to me Kennedy — presumably the swing vote of this hot bench — seemed as if he was looking for a reason not to be in favor of equality. Over at Joe.My.God, Joe headlined Kennedy’s questions concerning timin as an “Uh Oh” moment. I called it an “Oh, shit” moment.

enough already

May 2nd, 2015

Eric,
I have listened to the whole thing, read many of the non-hate-driven-Christian briefs and come to the conclusion that the entire question of whether we are entitled to human and civil rights will be settled by how much Justice Kennedy feels we deserve dignity.
Human dignity.

I’ve never been overly optimistic about the outcome of these two questions before the Supremes – and you’ve seen the nastiness directed at me by some of the A-Listers here over the past few years for that. The names I’ve been called, the insults – wow.

I’m still moderately optimistic. Chief Justice Roberts doesn’t want to upset the big-business community and they are on our side.
Justice Kennedy may still rule that we are human.

Eric Payne

May 2nd, 2015

Enough already —

Yeah, I’ve seen it and, a time or two, been on the receiving end of it, too.

Like you, I’m not as optimistic as everyone else seems to be. Yes, the answers to both questions seem easy… but there’s a reason the Justices have dissected the Sixth Circuit’s decision as they did… and the questions concerning “tradition” and “millennia” of belief, have me thinking this ruling is going to be split — states have the authority to determine what types of marriages are performed in their states (because, you know, two dudes getting married isn’t the same type of marriage as a dude and his oil’ lady…) but that states must recognize legal marriages from other states.

Such a ruling, in the eyes of this Court, could very easily be seen as an “everybody wins!” decision.

enough already

May 3rd, 2015

Eric,
I think you analysis is probably right.
Everyone wins (or, ‘everyone loses’) just about sums it up.

One thing which many people plain, flat out don’t understand in these Supreme Court cases: The Robert’s Court is not the least bit interested in the fallout of their decisions. Take away marriage rights in nearly 20 states because courts ‘falsely’ imposed them?
Sure – and the ensuing chaos and harm to gays and their children? Doesn’t matter one whit to the Justices.
Not one bit.

That a split decision will lead to years of litigation and uncertainty and even more bitterness and anger and unbelievably vicious attacks upon us and our children by hate-driven Christians may well, in fact, be seen as a good thing by the Justices.

I do wish more young women and gay men would vote their one and only ‘true’ self-interest – their civil and human rights and give Hillary a chance to replace moderate Justices on the Court with more liberal Justices, replace the hate-driven conservatives with liberal Justices and, to be frank: I hope the notorious RGB is immortal.

Ben in oakland

May 3rd, 2015

I’ve long thought that that is the best we can hope for, I hope I’m wrong. But even so, we will still win. It will just take a few more years, when it ought not.

Eric Payne

May 3rd, 2015

There’s a reason some states (yeah, I’m looking at you, Texas) are busy writing bills that are “work-a rounds” for marriage equality… and why those work-a rounds are money-specific (No state revenues will be used, etc.).

Even the most conservative GOP state government knows they can’t start unraveling the concept of valid legal contracts in one state being valid across all states. So SCOTUS really doesn’t have much of a decision when it comes to Question 2 of Obergefell v. Hodges. But in siding with the Sixth in reference to Question 1 — “Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?” — the Justices could defer to “states’ rights”… especially if they know how they rule on Question 2.

So Ohio or Georgia or Alabama or Texas won’t have to officially perform same-gender marriage officiations, but the gays of Ohio or Georgia or Alabama or Texas can go to New York, get married, go back to Ohio, etc, and still be married.

(What about divorce, though? Or Estate Probate? Will states be able to deny the spending of state money to finance those state-government aspects of marriage… or is that for future litigation to decide?)

Nathaniel

May 4th, 2015

Eric, future litigation would decide, but it would be swift. With no choice in recognizing those marriages as valid, the state courts could rapidly slap down any supposed limit on state spending with respect to same-sex marriages.

While I agree that the chances this won’t go entirely our way are pretty high, I hope the Justices consider the lack of advantages to siding with the Sixth on question 1, while against on 2 – it will be a lose-lose for all involved. I know EA is convinced that Roberts’ SCOTUS doesn’t care about creating chaos, but I hope Roberts and Kennedy consider that such a split will inevitably result in many more years of appeals to SCOTUS for clarification on just how much marriage discrimination is allowed before Constitutional protections kick in for gay people. Anything other than full, nationwide marriage equality will mean SCOTUS will keep facing the issue. If they wish to be done with it, then the quickest route should be clear.

Eric Payne

May 4th, 2015

Nathaniel,

How many decades has it been since SCOTUS “decided” a woman has absolute right over her body? Oh, wait… They haven’t, yet.

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