Update on SSM SCOTUS oral argument

[muon2]

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.

[muon2]

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.

[muon2]

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.

[muon2]

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.

I'm not sure I agree with the conclusion of the article.

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My sense was that the debate was not what the justices think marriage is, but whether the states can differ on what the primary reason for marriage is. It wasn't whether it's about commitment and dignity more than biology, but whether it can be about biology at all.