Update on SSM SCOTUS oral argument

[Torie]

Not much really from this source, with Kennedy being his usual schizo self on this issue, and Roberts pounding both sides, but no detail as to what he said. Btw, I have zero idea how I would rule on this issue if on SCOTUS, other than I would be most focused on the  issue of married gays finding their marriages not recognized when moving to another state, which interferes with the right to travel.

On the right to travel bit, the NYT did not discuss that point at all, and its spin suggests that perhaps the odds have tipped slightly against SSM being held a Constitutional right.  Roberts has a way of finding clever paths to where he wants to go that don't seem like Judicial activism, and so perhaps he will find the path I suggest of some appeal. It's a real policy problem when marriages come and go depending on where one moves to. It's intolerable really. That's the nub of the issue to me.

[Torie]

I was driving for 4 hours yesterday and I had the chance to hear a lot of the argument on the radio. It seemed to me that everyone but Thomas (who was silent) was inclined towards states recognition of other states SSM. Roberts and perhaps Alito seemed to use that consensus to see if there was a narrow brokered outcome with Kennedy, not forcing states to perform SSM but forcing them to recognize it. Perhaps that would follow naturally from Windsor. I couldn't tell from Kennedy's questions if he an interest in that line. He seemed to want to distinguish between a bar on state action against gays (Lawrence) and mandate on states to perform actions (SSM). Yet he also seemed to dislike much of the states' arguments.

The take in reading the press today, is that Kennedy is toying with the idea of finding a right to SSM, and the Court seemed to consider the interstate issue to be likely moot, and asked few questions about it. But you listened to the oral argument, or much of it Mike, so I am going with your take. In any event, if out of state SSM marriages must be recognized (unless say a Vegas style shot gun wedding), then it won't take long for this issue to be resolved by the ballot box, if it is not done so by SCOTUS in June. Most states are not going to be comfortable having their new residents being SSM, while their other residents do not have such a right. The situation of having some states recognizing SSM, and not others, is and was always going to be an unstable and unsustainable one, that was and is destined to have a relatively short half life. Thank heavens!

[Torie]

One of the hypotheticals raised by Alito was the question of whether a constitutional requirement for SSM would imply that any two people could marry, and therefore siblings would have the same constitutional right. That raised a thought from me that I didn't hear asked in the context of recognition across state lines. Ginsburg noted that it exceedingly rare for non-SSM marriages to not be recognized by other states since Loving. What wasn't posed was the real example of first-cousin marriages. Half the states prohibit first-cousin marriages, yet generally recognize such couples married in other states. If SCOTUS goes down the path of allowing states to set their own policy, but mandating acceptance from other states, then I wonder if it won't end up like first-cousin marriages.

The idea is that states would have to recognize SSM, and presumably first-cousin marriages, although if a blood relation, perhaps a state could show a compelling enough interest in not doing so. I got a chuckle when the tort lecturer in my bar review course said that NY allowed first cousin marriages (it allows any marriage that has one eight blood consanguinity), and that must be why he saw so many weird looking people in the NYC subway.   There certainly would be an adequate state interest in not recognize blood sibling marriages, but then no state does of course.

[Torie]

One of the hypotheticals raised by Alito was the question of whether a constitutional requirement for SSM would imply that any two people could marry, and therefore siblings would have the same constitutional right. That raised a thought from me that I didn't hear asked in the context of recognition across state lines. Ginsburg noted that it exceedingly rare for non-SSM marriages to not be recognized by other states since Loving. What wasn't posed was the real example of first-cousin marriages. Half the states prohibit first-cousin marriages, yet generally recognize such couples married in other states. If SCOTUS goes down the path of allowing states to set their own policy, but mandating acceptance from other states, then I wonder if it won't end up like first-cousin marriages.

The idea is that states would have to recognize SSM, and presumably first-cousin marriages, although if a blood relation, perhaps a state could show a compelling enough interest in not doing so. I got a chuckle when the tort lecturer in my bar review course said that NY allowed first cousin marriages (it allows any marriage that has one eight blood consanguinity), and that must be why he saw so many weird looking people in the NYC subway.   There certainly would be an adequate state interest in not recognize blood sibling marriages, but then no state does of course.

Yes, but my question was more to what the non-SSM states would do. The science says there is no reason to bar first-cousin marriages, but half the states do bar them yet they recognize those same marriages from other states. Why? Politically it's a difficult vote to lift the ban on first-cousin marriages. So if SCOTUS says that SSM isn't mandated yet SSMs must be recognized, I think it may still be a long time before some of the non-SSM states take action due to the political difficulty. I was thinking that was where there might be a parallel.

I see. Somehow I suspect SSM will be a hotter button issue. And the issue over time will be just how tolerable is it to force residence to decamp for six months to get married elsewhere, or whatever the period is to establish residence. In the end, I suspect most states will throw in the towel pretty quickly. Nobody cares much about first cousin marriages.

[Torie]

This take of where SCOTUS is going, is that it is probably going to make SSM the law of the land because the line the opponents took that it is all about procreation, left the Justices cold. The article even suggests that there is no rational basis for the distinction, which seems surely wrong to me. There is a rational basis for just about any law. But if it is subjected to a higher standard of scrutiny, heightened scrutiny or strict scrutiny, it does seem that the die would be cast. Whether SCOTUS chooses to duck it all, and just force states to recognize out of state SSM, or go this route and find refusal to allow SSM as a denial of equal protection remains to be seen. The odds seem low to me however that the Court will leave the status quo in place. Most Pub politicians will be extremely relieved about it all. This issue is beginning to eat them alive as it were, and they need it to be put off the table.