Chief Justice Roberts and a crafty “solution” to the gay marriage issue

ph64150_lgAfter listening to the oral arguments in the gay marriage case, I offer the following speculation about a reasonably likely outcome:

1. Chief Justice Roberts writes an opinion on question one finding that a state is not required to allow gay couples to marry within that state. He convinces Kennedy that not enough time has passed to enshrine gay marriage into the pantheon of Constitutional rights, and we don’t want a repeat of Roe.

2. The Chief writes an opinion on question two finding that State X must recognize a gay marriage that was lawfully entered into in State Y. Here the Chief relies upon long-standing conflict of law rules.

“Splitting the difference” in this way can arguably be seen as preserving the Court’s legitimacy in the face of arguments that it is merely another partisan political branch of the government and not a real court. But what do I know?


22 responses

  1. Seventy percent of Americans live in states where same-sex marriage is legal. In some of them (like Massachusetts, my home), it has been going on for a long time. Not only are a majority of Americans in favor of it now, but very few really get very upset over the idea.

    Do you see waves of anger rolling over the nation as court after court has struck down bans on same-sex marriage? You do not. And with each passing day, more and more people are accepting the idea.

    The court may not want another Roe v. Wade (I guess I’m in that minority that (a) has read the decision in that case and (b) finds it convincing and enlightening), but the way to avoid one is to make same-sex marriage the law of the land. Failing to do so would be the course most likely to generate a firestorm.

  2. Jon,

    To be clear, I was not stating my opinion about what should happen but rather what I speculate might likely happen. All the best.


  3. I’d say that great minds think alike, but it appears that I disagree with you on nearly everything(some things never change), and my legal knowledge is so slight as to be negligible. That said, this very thought jumped into my mind this morning as I read a single account of the arguments. Satisfying as that would be to many, it would seem to solidify this courts reputation as being weasels at best and fools at worst.

  4. Either it is a constitutional right, or it is not. Judges are paid to interpret the Constitution, not write it, damnit!!!

    I agree with Dworkin: There is (almost always) one right answer. It is nonsense like this that make our courts the laughing-stock they are.

  5. This seems very unlikely to me. It would contradict the de facto decision made in October when cert was not granted on the several stayed circuit decisions legalizing marriage.

    To do this would mean that a large number of states which have been marrying same sex couples for months now would suddenly be in an awful bind, with thousands of marriages in a state of legal limbo.

    If Roberts was going to have made this argument successfully, why didn’t it work in October?

  6. I am reminded of Hansberry v. Lee, holding that a racially restrictive covenant could not be enforced as a matter of res judicata, eight years before the Court ruled in Shelley v. Kramer that such covenants violated equal protection. But that was a different Court, staffed by very different Justices.

  7. Judge:
    My guess? It’ll be a wash, i.e., the High Court will say that the Constitution doesn’t require gay marriage but doesn’t prohibit it, either. We will see shortly.

  8. When the Mass. Sp. Ct. issued their decision 10 years ago, I thought the Full Faith and Credit clause would dictate this result, but a conservative friend of mine explained to me that the FFC clause doesn’t work that way. I forget his reasoning, but recall being decisively convinced that he was right on the law. (And the corollary conclusion that the FFC clause means about as much as the contract clause, which is to say, not much).

    Are you advocating for a more robust Full Faith and Credit doctrine? How would that apply, e.g., in the Kansas v. Colorado case over marijuana?

    My “prediction” is 6-3 in favor of SSM, with Roberts and Kennedy both joining an opinion written by one of the Madame Justices. Ideally, allowing Ginsburg to write it as a valedictory on a long and respectable career.

    (I think CJ Roberts tipped his hand right in the middle of the argument when he focused in on the core question of gender. He framed the question exactly right. But what do I know, I’m just a lowly trial court litigator now — my days of SupCt practice appear to be behind me.)

  9. I am really curious as to when the nonpolitical SCOTUS sat. Maybe prior to Marshall, though they did not do much and Chase may well have been the most overtly partisan Justice of all times. Certainly the trajectory of Commerce Clause cases between Marshall and Tawney represents a difference in the understanding of Federalism not explicable in terms of the words of the Constitution or some neutral science of law. Law is value loaded and different visions of the values underpins the arguments about what answer is right. Did the Legal Tender Case interpret the Constitution or make up an answer after all there is a method of structural interpretation in Strong’s opinion not that different from Douglas in Griswald. Kennedy has done a lovely job of drawing out the stigma principle from Brown. That principle is also central to the Establishment Clause. The stigma risk in the Founders’ day was religious, and no test oaths and no establishment address that danger in a manner that is congruent with the structural argument about stigma in the same sex marriage cases. The Robert’s compromise that you suggest would come too late and would suggest to some ,myself included, to much coordination with the R Party position.

  10. I think your prognostication will prove correct.

    Now as to Saturday, I think American Pharoah will be tough to beat, but put Danzig Moon in your exotics together with Materiality and International Star for good measure.

  11. Judge, it sounds like you are predicting that the Supremes will cut the animus baby in half. You been doing family law lately?

  12. MarcosD,

    Not to put too fine a point on it, but you do realize, don’t you, that I am the “partial-birth abortion judge.” Cutting babies in half is my specialty according to a 1000 or so folks who wrote to condemn me to hell.

    All the best.


  13. So your prediction is Roberts goes with “laboratories of democracy” on question one, and “full faith and credit” on question two?

    That seems plausible if Roberts and Kennedy believe that the country is in an existential crisis over the definition of marriage (that is, the debate between the “two people who love, care and commit to each other seeking official recognition and special privileges provided by the state to similarly situated couples ” school of thought vs. the “man + woman for purpose of having babies” school of thought).

    I’m not ready to put any of my own money on this horserace, but Roberts has shown some facility in using the pen like a dissecting scalpel and deciding cases on narrow grounds. I’m extremely interested to see where this decision goes.

  14. In what way is that a wash? That would be a stunning defeat for the same sex marriage cause, overturning the decisions of a large number of the Circuit courts.

    There is not any caselaw I know of even entertaining the idea that the Constitution prohibits same sex marriage. Indeed, the entire premise of Windsor rests on the idea that it is permissible for a state to extend marriage rights to same sex couples.

  15. repentinglawyer,

    There are degrees of of what you call “political.” But, I get and give some credence to your point that the Court has always been a “political” body of sorts.

    All the best.


  16. Political correctness will trump all reason. The Supreme Court seems to need work as they will rule on almost anything they are becoming as useful as mumps. They are more about political stance than law.

  17. Pingback: An amendment to Chief Justice Rogers’ “crafty solution” « Hercules and the umpire.

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