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.

RGK

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