Saturday, January 24, 2015

190.3 - Update: SCOTUS takes up same-sex marriage

Update: SCOTUS takes up same-sex marriage

I was talking about marriage equality last week, and I said that by the time you saw the show, the Supreme Court may have announced a determination to take up the issue. They did and they have.

More specifically, the Court will take up appeals related to the ruling of the 6th Circuit Court of Appeals decision upholding state bans on same-sex marriage in that circuit. This was a consolidation of four cases from various states in the circuit. The Court said it will consider two related questions: the right of same-sex couples to marry and the obligation of states to recognize such marriages legally performed in other states. An unusually long time is to be allowed for oral arguments on each issue, which will take place in April. A ruling is expected by June.

Anthony Kennedy
Justice Anthony Kennedy is likely to be the key figure in the case. He's a generally conservative jurist but he has authored several decisions favorable to LGBT rights and I think most people expect a 5-4 decision declaring that same-sex couples must have the same right to marry and to have their marriages recognized that straight couples do.

That's not a given, of course, and one possibility is a move to split the difference and say that states do not have to allow for same-sex marriage but do have to recognize such marriages performed in states where they are legal. Which would be the real point of considering both those questions separately, considering that a "yes" on the first part - same-sex couples have the same right marry that straight couples do - makes the second one unnecessary.

Still, it appears most observers think there will be a 5-4 decision to support marriage equality. Which makes sense: The four moderates on the Court are safe "yes" votes and Kennedy is a fairly safe fifth.

I, too, predict a favorable 5-4 decision - but I'm going to toss something else out just for the heck of it:

I think there is a possibility of the outcome being 6-3, with the sixth vote being that of John Roberts. Not because I doubt how conservative he is (and I did oppose his nomination to the high court), but because I think Roberts is giving some thought to the legacy of the "Roberts Court," how his time will be seen in 40 or 50 years. And I think he doesn't want to be seen as having been on the wrong side of history. Of course, a 5-4 decision would be the same as 6-3 in terms of the legacy of the "Roberts Court" but there is still his personal legacy. This is really blue-skying, but I figured I'd just throw it out there.

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