An amendment to Chief Justice Roberts’ “crafty solution”

Earlier, I wrote about the gay marriage case, and suggested the following speculation:

After 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?

After thinking about it some more, I want to amend the first point. Thus,

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. Chief Justice Roberts writes an opinion on question one holding that the writ of certiorari as to that question is “dismissed as improvidently granted.” 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. On the other hand, he tells Kennedy that we don’t want to set a precedent that there is no Constitutional right to gay marriage.

The Chief goes on to write an opinion on the second question presented as suggested in the first post–that is, anti-gay marriage states must recognize gay marriages lawfully entered into in pro-gay marriage states.


32 responses

  1. Anon.,

    SHG alerted me to my stupid error. If you click back (thus increasing my statistics) you will see that I killed him, that is, “Chief Justice Rogers.” I apologize.

    All the best.


  2. Anon.,

    This is semi-serious.

    I find typing hard now after chemo. As a result of chemo, I have something called peripheral neuropathy in my left hand and both feet. The pain when typing is minor, but the dexterity of my left hand is pretty much a horror show ’cause the normal feeling has left the building.

    Here’s hoping the foregoing made you feel horrible. Bastard, you attacked a cripple.

    Kidding of course, re the sentence above. All the best.


    PS I never was any Goddamn good at speel’in anyway.

  3. Hey, I’m an atrocious speller myself and make typos all the time. I’m sure I have driven many a judge nuts reading my briefs. And aside from my glasses, I have no real excuse.

    I’m sorry. I forgot you’ve been recovering from the effects of chemo. Truthfully, your posts have so much energy and wit its easy to forget you were ill– I think that’s a compliment.

  4. “Improvidently granted”??? How do you square THAT circle?

    What is the constitutional basis for discretionary certiorari review, anyway? We have one supreme court for one reason: to ensure uniformity of the law. And either same-sex couples have a right to marry, or they do not. You have a constitutional right if you live in Buffalo, but not in Cleveland???

    This is the kind of gamesmanship that has brought our court system into disrepute. Law is supposed to make sense.

  5. It was a favorite ploy of Frankfurter’s to vote to dismiss the writ as improvidently granted though I am not sure he invented the trick. How the ploy would help on this issue I do not see, and I doubt that it would satisfy anyone since it would leave the split of Circuits standing. There is a good case to be made that Roe is really a placeholder for Brown with much of the criticism of the Court from the right and was adopted because other religious crackpotism like school prayer and bible reading in school did not get .the traction desired. Certainly same sex marriage is not much newer than Robert and cos ideas about money as mere speech or self defense reading of the 2nd Amendment, so that the argument becomes one from pure partisanship, our new is good new though it devides the Country but your new is bad new because of division.

  6. Full kudos to you. Very clever and very political. Political in the sense that I think many states have largely abandoned any residency requirement for a marriage license. So homosexuals who reside in Nebraska could conduct a destination wedding in say, Hawaii, and the return back to the Cornhusker State and be legally married.

    Huge downside. People would see this as a political accommodation or some lawyer trick and the status of the Supreme Court (and the Rule of Law) would decline even further as we slouch toward Gomorrah.

    Decide the case straight up. That’s what a REAL umpire does.

  7. DIG would be hard to sell. I can see deciding the recognition question and remanding the right to marry for reconsideration in light of the opinion.

  8. As a matter of courtesy if nothing else, if it’s going to take four votes to grant cert., then it should take six votes to DIG. Otherwise, what stops a five-justice majority from DIGging every case they don’t want to hear that only got four votes for cert?

  9. Relatively easy to accept in Nebraska, where a low-income gay couple could (I assume) take a day trip on a bus to Iowa to get married. (Assuming I am correct in remembering that Iowa has same-sex marriage by state law.) But think of a low-income gay couple in rural southern Alabama. It’s asking a lot of them, to take time off from work, and incur significant expense, to travel across the vast expanse of the south to the nearest place where state law allows same sex marriage.

  10. Sam:

    Now that’s a REAL hardship for one of the most important events in a person’s life.

    Spend money and take time off of work? Oh, the horrors and sacrifice!

  11. If the Supreme Court in Alabama hadn’t entered that crazy opinion I think you would be right, but that sort of craziness is why they grant cert.

  12. A DIG would certainly fit your earlier programming suggestion: STFU.

    Note: Assiduously asserted PERV disclaimers without similar DEV disclaimers is, well, suspicious.

  13. Sam,

    Of course, my speculative analysis of what might happens does not necessarily reflect my own position. That is, I am not recommending, I’m just (hesitantly) predicting. I will probably be wrong. However, I find the process, including comments like yours, intellectually stimulating. I hope you do too.

    All the best.


  14. I do find your thoughts and the process very useful, and always appreciate your input, Judge. Thanks.

  15. Here is why I don’t think a DIG or an opinion affirming Sutton are likely:

    There are many states where gay marriage is legal solely because of a court decision based on the U.S. Constitution (Alaska, Arizona, Colorado, Florida, Idaho, Indiana, Kansas, Montana, Nevada, New Jersey, New Mexico, North Carolina, Oklahoma, Oregon, South Carolina, Utah, Virginia, West Virginia, Wisconsin, Wyoming). If the Court upholds the Sixth Circuit and holds that gay marriage is not constitutionally compelled, then the state laws banning it become operative again. So all of the gay marriages in these states are now thrown into limbo; depending on the state law, those marriages may become void as a matter of law (for example, see Indiana Code 31-11-1-1). At that point, the Court has thrown many lives into a complete legal limbo. I think you are accurately divining Roberts’ and Kennedy’s intentions (uphold dignity of gay relationships without mandating marriage). But there is no good escape (like there was in the Prop 8 case, by finding a procedural way around it) and I think they will both see a decision mandating gay marriage as unavoidable.

  16. Smitty,

    Wonderful analysis, BUT . . . As another commentator suggested, and I thought that too was brilliant, the better way is answer question 2 saying the one state must recognize a marriage lawfully entered into in another state. THEN remand question one to Sutton for reconsideration in light of the answer to question two. Perhaps Judge Sutton would then get the message.

    Writing the opinion on question two would be tricky, but it might be based on a Constitutional right to travel and without addressing question one directly. It might also contain some nice dicta that the consensus appears to be moving quickly in favor of gay marriage, and that Sutton should more carefully consider the same. In the opinion on remand, they should explicitly overrule Baker v. Nelson, a prop that Sutton relied upon.

    All the best.


  17. “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” It is 21 fairly common words that at least some judges (esp. federal) ought to be able to read. A person’s wedding tackle makes no more difference than then color of their skin, or, states are free to make whatever sillyassed Constitutionally-violative laws they wish – pick one. If 9 SCOTUS justices can’t figure that out and agree upon it without regard to politics or will not put their name to such common sense, we as a people and a nation are faced with some pretty big problems. It is nonsense like this that explains both lawyer jokes and the public’s increasing distaste for the judiciary at all levels. This is the US of A – we don’t like our cyclists, golfers, quarterbacks or Supreme Court justices to cheat and then, act like over-indulged brats and weasel around about it.

    If any remanding for reconsideration needs to be done, it ought to be done with instructions to take some CLE on the 14th…and then, reconsider VERY CAREFULLY in light thereof. Perhaps even a show-cause order to the courts below demanding an explanation as to why this ever got to SCOTUS might get some attention. What, are they looking for campaign contributions or something?

  18. And, Judge, I read your imagined conversation between a certain judge and a clerk. Here’s my version:

    As a group of men sit around a room attempting to draft a document, Royall Moore (of the Boston Moores) walks in and announces that two men from England, one Sir Elton and a Mr. Furnish, have arrived in the city and are getting married. Mr. Moore suggests that the document ought to include something to prohibit such. Three of the men assembled, Mr. Jefferson, Mr. Adams and Mr. Madison, simultaneously exclaim, “Shut the front door!” “No, I’m serious!,” says Mr. Moore. “And so are we – shut the front door because you probably do not wish to be embarrassed by us beating some sense into you, Royall,” explains the trio. As the gentlemen further explain, governments have no more business regulating who marries whom than they have regulating the color of a citizen’s underwear and as such, they will not include such nonsense in the document under discussion. Mr. Moore rather haughtily explains that he, like any (supposed) proper gentleman, is wearing a surely-to-be-approved pair of white boxers and a white wife-beater. Whereupon, a certain Mr. Franklin stands up, raises his arms and shakes his ample pelvis and says, “I ain’t wearing no drawers! It’s commando all the way, bay-bee!”

    After the laughter subsides, Mr. Jefferson continues. He explains that the document is already a compromise on issues like slavery and universal suffrage, but because of the “easter egg” they are incorporating, as society progresses, it can correct these issues. And he further explains that should a few powerful folks catch a case of regressive dumbass syndrome, there will also be a rather toothy bit about what those dumbasses absolutely cannot do. Amongst those things, he says, are the government’s intrusion into the privacy of its citizens, from whom the government is favored with its limited and enumerated powers. Whereupon the puckish Mr. Franklin says, “Here, Royall, hold this kitestring for a moment, would you, old boy? I need to put on my raincoat. Surely with all this lightning, can a large storm not be brewing? And speaking of “brewing,” where is God’s beer?”

  19. Oliver W.T.F. Holmes,

    The hubris of Judge Sutton forced this issue upon the Supreme Court. I am all for letting him try again so long as Baker v. Nelson is overruled as a part of the remand order and the Court makes clear that Sutton ought to take the views of the other circuits more seriously. If Sutton can’t take on and trounce Judge Posner’s opinion then even a small modicum of humility ought to drive Judge Sutton the other way. As you can tell, I am angry and disappointed that Sutton, a surely brilliant and presumably good man, unnecessarily foisted this mess on the Supreme Court.

    All the best.


  20. And if I am Judge Sutton, I would re-issue my previous opinion that the constitution does not compel gay marriage and send a copy to CJ Roberts and Kennedy with a note that says, “Grow a spine. I am not going to do your dirty work for you.”

    Resolving this case based on question 2 raises interesting federalism questions about marriage. I’ll use an extreme hypothetical. 20 years from now, Nevada is in the midst of an economic freefall and decide that increased tourism is the answer. The state passes a law that declares that any group or pairing of 18+ adults can get married in Las Vegas. You want to marry your sister or you want to create a polygamous marriage of 17 different people? Vegas, baby! Now, Vegas is filled with out of state people who get married and then go back to their home state and demand recognition for their Vegas marriage.

    If SCOTUS resolves this case based on question 2, how does that complicate the efforts of other states to reject Vegas marriages that would be void if it had been performed within their borders?

  21. Well, Your Honor, I would offer:

    If Judge Sutton knows how to “force” the SCOTUS to take up an issue/case, he needs to retire and take his pick from the numerous very lucrative offers he will undoubtedly receive from biglaw appellate firms. If he doesn’t need or want the money, any number of worthy causes will be grateful for his generosity. Maybe he could endow a center for Constitutional Studies or something along those lines.

    But whether “forced” upon them or taken up by choice, the Court’s duty to the law and to the people is clear. Inane questions about the marriage practices of ancient Greece aside, this is 2015 and it is the SCOTUnitedStates. Unless we (as “we the people”) are prepared for Alabama to permit slavery (or going with the ancient Greek thing, require straight couples to procreate – boys only, please – so as to increase the ranks of the Standing Army of Alabama), Wisconsin to deny the vote to women under 34, brunettes of either gender and all people under 5′ 6″, and New Jersey to permit gender-based employment discrimination, but only in months ending in an “R” (based on oyster “season,” of course), the Supreme Court of these United States ought to be, needs to be, and both in fact and appearance, at the forefront of assuring that the 14th is upheld in both fact and spirit. Whether or not one of your brother or sister judges screwed up should not enter into it. Besides, the appeal on behalf of God has been tried and from all reports, He or She didn’t seem to take issue with a lowly mortal judge tossing the case out.

    And for the record, I’m a straight (and married) generally conservative southern white guy who fishes, hunts and changes the oil in his own fishing/hunting truck (i.e., what many would call “a redneck”). But good grief, what business is it of mine, yours or our government if two men, two women or Bruce Jenner and another Kardashian to be named later want to commit their love and life to each other (well, at least until the fight over who gets the 17 million dollar, gold-and-bejeweled Italian dining room table, the solid platinum bidet and the Kim and Kanye wedding souvenirs comes up in the divorce proceedings)? I suggest that an ever-growing number of “we the people” feel the same way.

    All the best (or at least, a nice weekend) right back at ya!

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