Only a few hours ago, the Court concluded a marathon two-and-a-half hours of oral arguments in Obergefell v. Hodges, the consolidated same-sex marriage cases that undoubtedly form the basis of the big civil rights decision of our time.
The Court divided the arguments according to the two questions presented: First, whether the same-sex marriage bans are unconstitutional, and second, whether Ohio's refusal to acknowledge an out-of-state same sex marriage violates the Full Faith and Credit Clause.
Question One: The Constitutional Entree
On the first question, the justices -- even the liberal ones -- struggled with understanding why they, and not voters, should be the ones to decide who gets to marry whom. This interesting issue is more jurisprudential than legal, meaning cases aren't particularly helpful.
John Bursch, attorney for respondents, said it offends the democratic process if judges, and not voters or legislatures, are the ones who determine what marriage is. Individuals have a "fundamental liberty interest in deciding the meaning of marriage."
Of course, part of the point of our Constitution is that we don't put civil rights to a vote. That's part of the other jurisprudential argument, which is whether same sex marriage is a subset of "marriage," as its advocates believe, or whether it's a brand new kind of marriage subject to being approved or denied, as its opponents -- along with Chief Justice Roberts and Justices Alito and Scalia -- believe.
If marriage, period, is a fundamental right, then same sex marriage goes along with it. But if same sex marriage is a different kind of marriage that no one has anticipated before, then maybe it doesn't get protection. Here, Mary Bonauto, attorney for petitioners, pushed back, saying that sometimes rights exist even though we haven't acknowledged them yet. For example, she said, "it took over 100 years for this Court to recognize" that gender was protected by the Constitution. Now, it's a foregone conclusion. Back then? Big deal.
Bursch brought the Court back down to earth a little as he struggled to convince Justice Kagan why the state has an interest in limiting marriage just to opposite-sex couples. Scalia (very helpfully to respondents) pointed out that the burden rests with petitioners to show that there's no rational basis for the restriction.
Even so, Kagan didn't buy the arguments that same-sex marriage somehow harms traditional marriage or that placing an imprimatur on relationships that can produce biological children were legitimate state interests -- but more importantly, Justice Kennedy didn't seem to buy them, either.
Question Two: A Light Full Faith and Credit Dessert
Question two interrelates with question one, and it's important because it seems pretty clear the Court intends to hold that the Full Faith and Credit Clause requires a state to recognize marriages performed in other states, regardless of the state's opinion on same-sex marriage. Even Scalia and Roberts appeared to concede this point.
But Roberts pointed out that even that outcome could inevitably lead to same-sex marriage everywhere because "we live in a very mobile society, and people move all the time." If married same-sex couples moved to, say, Michigan or Ohio, and heterosexual marriage miraculously survived, then those states' justifications for continuing same-sex marriage bans would be completely undermined, and we'd be back here again.
Deciding question one for petitioners and question two for respondents would comport with the "wait and see" approach, because there would be controls and variables; essentially, the Court would be setting up a giant experiment in the effects of same-sex marriage. However, only Scalia really seemed to disagree that same-sex marriage could harm heterosexual marriage or the children of same-sex couples. Perhaps Roberts already knows the likely result of this little experiment and would be more amenable to solving the problem now.