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.
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.
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?”
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