Waiting for Obergefell

Obergefell v. Hodges is the case that will be in the history books, and the decision is expected within the next two weeks, and Jim Obergefell is waiting in line.

Arthur died from amyotrophic lateral sclerosis (ALS, or Lou Gehrig's disease) just three months after the two men married in Maryland in July 2013. They filed suit to try to force their home state of Ohio, where gay marriage is not legal, to recognize their out-of-state union by putting Obergefell's name on the eventual death certificate.

Though Obergefell, wearing a suit and tie in Washington, D.C.'s oppressive June humidity, was first in line – and empty-handed so that he could go straight for the front-row seats without stopping at a locker – his case was not one of the decisions released on Monday.

So, taking time off from his real-estate job back home, Obergefell will be back on Thursday. And again next Monday, and again and again every day the justices expect to issue decisions between now and when the court recesses June 30.

This is what we've been waiting for.  This is the end of the arc that I started with this blog back in 2009, with a challenge to Prop8 in the California Courts. 

It all comes down to this.

Religious liberty and marriage

From one of the amici briefs to the Supreme Court: my emphases

Significant religious liberty issues will  indeed  follow in the wake of same-sex civil marriage. But it  is not an appropriate response to prohibit same-sex  civil marriage in order to  eliminate every risk of  possible  impositions  on religious liberty.  No one can  have a right to deprive others of  their important  liberty as a prophylactic means of protecting his own.  Just as one’s right to extend an arm ends where  another’s nose begins, so each claim to liberty in our  system must be  defined in a way that is consistent  with the equal and sometimes conflicting liberty of  others. Religious liberty, properly interpreted and  enforced, can protect the right of religious organizations and religious believers to live their own lives  in accord ance with their faith. But it cannot give them  any right or power to deprive others of the corresponding right to live the most intimate portions of  their lives according to their own deepest values

It  goes on to argue for robust religious freedom exemptions.

The upcoming SCOTUS decision

From Scotusblog:

Three lessons emerge from this brief history of same-sex marriage litigation in the United States. First, the evolution of constitutional law has more to do with changing social and political mores than with traditional sources of constitutional law such as text, original understanding, and precedent. Same-sex marriage has advanced from an absurd constitutional argument to a compelling one – at least in the mind of five Justices – because public attitudes regarding sexual orientation have been transformed over the last half-century.

To a greater extent than most people probably are aware, other landmark Court rulings on issues of social reform were similarly inconceivable only a decade or two before they happened. ... 

Second, Court decisions on issues of social reform that advance far beyond public opinion often generate potent political backlashes. Brown, Roe v. Wade, and Furman v. Georgia all had such an effect. ... 

Third, the factors that predict political backlash – which include public opinion on the underlying issue, the relative intensity of preference on the two sides of the issue, and the ease with which a particular Court ruling can be circumvented or defied – suggest that a Supreme Court ruling in favor of a constitutional right to same-sex marriage in 2015 will produce only minimal political backlash.

Polls show that fifty-five to sixty percent of Americans support same-sex marriage today—perhaps triple the percentage of twenty-five years ago. Moreover, as recently as ten years ago, opponents of same-sex marriage had much more intense feelings on the issue than did supporters. According to polls taken then, only six percent of same-sex-marriage supporters said they would be unwilling to support a political candidate with whom they disagreed on the issue, while thirty-four percent of opponents said they were willing to make same-sex marriage a voting issue. Among evangelical Christians, that number rose to fifty-five percent. That large disparity in intensity of preference between the two sides of the same-sex marriage issue no longer exists today.

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.

Here we go: SCOTUS grants cert

As predicted, the Supreme Court decided to address the split in circuits (with the 6th circuit upholding equal marriage bans).  They have granted certiorari to all the cases from the 6th circuit, with arguments in April and a decision in June.

Is this the endgame?  What will be the civil rights legacy of the Roberts court?

From the NY Times:

The Sixth Circuit’s decision upheld bans on same-sex marriage in Kentucky, Michigan, Ohio and Tennessee. The Supreme Court agreed to hear petitions seeking review from plaintiffs challenging the bans in each of those states. 

The court said it will hear two-and-a-half hours of argument, probably in the last week of April. The first 90 minutes will be devoted to the question of whether the Constitution requires states “to license a marriage between two people of the same sex.” 

The last hour will concern a question that will be moot if the answer to the first one is yes: whether states must “recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state.” 

ThinkProgress is hopeful:

Although the Court is unlikely to hand down a decision on marriage equality until June at the earliest, it may have already tipped its hand. Last October, before the Sixth Circuit weighed in, the Court began denying review of lower court decisions ruling in favor of marriage — an act that also had the effect of allowing those decisions to go into effect in many states. A decision against equality at this stage could potentially unmarry couples who benefited from those lower court decisions. At the very least, it would create the anomalous situation where people who got married before a certain date would remain married, but no new same-sex marriages would be permitted in some states. 

It is unlikely that a majority of the Court would have allowed these lower court decisions to take effect unless they believed that the Supreme Court was likely to rule the same way.