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Audio & transcript from oral argument: (Original Post) elleng Apr 2015 OP
I listened to the oral arguments for and against both questions, and here's my take on it . . . markpkessinger Apr 2015 #1
Not a single utterance from Clarence Thomas. zebonaut May 2015 #2

markpkessinger

(8,395 posts)
1. I listened to the oral arguments for and against both questions, and here's my take on it . . .
Thu Apr 30, 2015, 07:44 PM
Apr 2015

Seems to me there are three possible outcomes. The two questions before the court were:

(a) whether same-sex couples must be permitted by the states to marry on the same terms as heterosexual couples as a matter of constitutional right; and

(b) if the Court decides against recognizing it as a Constitutional right, then are states that do not recognize same-sex marriage required, under the full faith and credit clause, to recognize those same-sex marriages performed in states that do allow them.

So the three possible outcomes are:

(1) On question (a) they could rule that same-sex marriage is not protected by the equal protection clause, and thus the question of whether same-sex marriages will be recognized will continue to be left up to the states; and on (b) they could rule that states are not required to recognize the same-sex marriages legally performed in other states; or

(2) On question (a) they could rule that the equal protection clause does indeed mean that same-sex couples must be permitted to marry on the same basis as heterosexual couples. In this case, question (b) becomes moot, and the Court doesn't have to address it; or

(3) On question (a) they could rule against a constitutional right to same-sex marriage, and on question (b) rule that even though the question will still be left to the states regarding whether to permit same-sex marriages within its borders, that states must still be required to recognize the marriages validly performed in other states.

Question (a) is too hard to call based solely on the oral arguments, so that could go either way (most likely depending upon where Justice Kennedy falls). But from what I heard during the argument for question (b) even the conservative justices were having a hard time finding any coherent basis for ruling that states should not have to recognize the public acts (including same-sex marriage) of another state. So, if I am right about this, scenario (1) is not really a possibility.

I think the conservatives on the court will tend to want to split the baby and go with scenario (3). But if they think about the practical ramifications of that, at least some of them (such as Kennedy and maybe even Roberts), will have to take a step back. The reason is that scenario (3) will create an absurd legal reality, whereby same-sex couples in states that do not allow them to marry will simply get married in states that do, and their home states will be required to recognize their marriages in any case. So IF even one of the conservatives actually applies a bit of rationality to the situation, the only coherent option is scenario (2). But that's a big 'IF'.

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