Same-Sex Marriage Reaches Supreme Court

Post Reply New Topic

Yesterday, the Supreme Court heard oral arguments addressing two questions: is it constitutionally permissible to deny marriage licenses to same-sex couples, and must states recognize out-of-state same-sex marriages. The arguments were part of the Obergefell v. Hodges case.

http://www.nytimes.com/2015/04/29/us/su ... pe=article


Seriously, why hasn't a thread been made about this??

Smaller countries such as New Zealand and South Africa (among others) had much easier and less complicated transitions to acceptance of gay marriage.

I find the whole legalisation process in different countries fascinating. Different US states have different marriage laws, and those that legalised same-sex marriage have done so in different ways – through legislatures, the judiciary and in a few instances by referendum. But proponents of same-sex marriage are trying to use the US federal constitution to have it legalised nationwide via the federal court system. I find it all rather fascinating.

The arguments being used by either side are much the same as those used in other countries, although tailored with US law (incl. SCOTUS precedent) in mind. The Supreme Court justices received a lot of briefs from both sides, but a total of less than three hours was given for oral arguments. One wonders how much work the justices have had to do behind the scenes. In any case, I hope that the US does legalise SSM nationwide in June when the US Supreme Court is expected to hand down its decision. Goodness knows when the Australian parliament will get around to it.

From what I gathered from comments made during oral arguments, I see two basic outcomes.

1. Supreme court does nothing...saying it's a state rights issue. If they do nothing, the matter will resolve itself in time one way or another. Likely in favor of same sex marriage, but they will rule the federal courts have no role in defining or redefining "marriage." In a decade, it may no longer be an issue.

2. Supreme court refuses to redefine "marriage" to include same sex unions but chooses to uphold the "full faith and credit" clause to say that anyone married in a state that allows same sex unions must be recognized in all other states. It won't be a full victory, but it will be the equivalent of nationwide same sex marriage...couples will just have to go to another state to get married.

A third outcome legalising SSM nationwide in the US is also possible from the oral arguments presented at the Supreme Court, if it rules that bans on SSM violate the Due Process or Equal Protection clauses of the 14th Amendment. In fact, a lot of political commentators in the US seem to consider this a likely outcome.

But it was interesting reading the oral arguments and seeing the judges grilling both sides, which I think is a good thing when deciding topics of significant national interest. You can clearly see ideological divides between the nine judges, so a lot of commentators are expecting a narrow decision either way. The votes of Justice Kennedy and perhaps even Chief Justice Roberts will be the most interesting IMO. Time will tell.

Indeed. Seeing a probable majority among his associate justices (5-4), Chief Justice Roberts might be convinced to join them (6-3) and write the opinion himself based in part on the Shelby opinion in Utah (which has been called staggeringly logical and founded in precedent). Because Roberts saw some constitutional light at the end of the Obamacare tunnel, he most certainly could in the Kentucky, Michigan, Ohio and Tennessee marriage cases. He is famously an organic jurist and the marriage proponents ( http://www.freedomtomarry.org/ ) have done their homework in the presentation of the evidence of organic support of marriage equality in just the last few years, though they have been working on it for decades. That the Court has done the absolute minimum required in responding to appeals from states where marriage has been affirmed, the fact that it is examining these four states suggests it is vastly less likely to buck the trend now when it could have done so more easily in earlier appeals. Too much judicial water has passed under the bridge to turn back now. The Court would be humiliated if it did so after majorities its owns district and appellate courts disagreed. These are facts that appeal to Roberts.

http://www.cracked.com/blog/5-reasons-g ... -marriage/

I like to think the Supreme Court will grasp how same sex marriage is as much of a momentous civil rights movement as racial civil rights had been.