Thursday, January 22, 2015

A darker view of SCOTUS...

One oddity in the SCOTUS order is that they phrased the questions they want to argue:

1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

2) Does the Fourteenth 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?

And neither of these are about the rights of gay people, but about state's rights.

   From Bradblog:
Harvard law professor Laurence Tribe .... told the New York Times that "The rephrased questions technically leave open a middle path along which the court would prevent states from discriminating against same-sex couples lawfully married in their home states without requiring any state to take the affirmative step of issuing its own marriage licenses to same-sex couples."
Indiana University's law professor Steve Sanders, writing at the American Constitution Society blog speculates: "Chief Justice Roberts (who may be thinking about how history will judge him) might see the possibility for some creative middle ground: 'yes' on the right to remain married, but 'question-reserved-for-another-day' on the right to get married."
"In a year or two, the Court could come back," Sanders continues, "and finally drag Alabama, Mississippi and Texas into line. Not unlike Roberts' opinion upholding Obamacare on taxing-power rather than the commerce clause grounds, such a result could be seen as statesmanlike, even Solomonic." 
Hasen, too, speculated that this could be an attempt by Chief Justice John Roberts to split the baby. "This strikes me as the handiwork of the Chief Justice, perhaps looking for a way to have as narrow a win for same sex couples as it is possible to achieve," he wrote. "That is, if the Chief calculates that Kennedy and the liberals are going to reverse the Sixth Circuit no matter what, perhaps this is a way to have that majority write as narrow an opinion as possible."
 That would leave LGBT people in the remaining 13 states in a limbo, where they have to go out of state to be married, and then have their marriage grudgingly recognized at home.  It's a mess, and I hope it doesn't happen.

1 comment:

JCF said...

Isn't that the situation in the military now? You go to one of the marriage-equality states to marry, and then the U.S. military recognizes your marriage wherever you're posted.

It would be a hassle, but could prove a "teachable moment". LGBT/allies could raise funds for couples for whom costs to travel would be prohibitive, and publicize them. I think marriage-discrimination states would be shamed, and national support might increase *faster*, than with a SCOTUS court-order (not that I don't want the latter, anyway).