Search the Lounge


« Savannah Law Review Symposium CFP: "The Walking Dead" | Main | Chapman Law Review Symposium on Cybersecurity CFP »

April 28, 2015


Feed You can follow this conversation by subscribing to the comment feed for this post.


The argument on Q1 seemed to be going in the direction of allowing States to decide; on Q2, Windsor would seem to compel recognition of valid marriage in states other than the state of celebration.

Problem of crossing state lines for a ceremony was discussed, but not very persuasively argued, IMHO.


I see it as at least 6-3 pro-GM on the first question (so necessarily, the second question too), because I think there is a strong possibility of Roberts over to the liberals on both questions. In oral arguments Kennedy recognized the historical trend; I think he is well aware of how this case will look in the future, and I think he very reasonably will not want his legacy tarnished by what could very well look like Plessy v. Ferguson in 50 years.


Why not do away with the label "marriage" completely, or, leave that to the religious authorities, whose judgment will be final?

A "civil union" can be labeled by the law just that. We have experience with this label. Works pretty well, in general.

Perhaps, when we have multiple partners in loving supportive relationships, the label can be expanded to "civil partnerships." In fact, we already have the ability to form such partnerships, and, if the law doesn't recognize these partnerships for some purposes, then the law can be tailored to do this, as the people see fit to do this.

Objections to conducting ceremonies should not be an issue, as religious authorities can make their own rules (as J. Kagan pointed out). Let religious leaders decide what "marriage" is ... let the civil authorities get out of that business altogether.

The argument that "domestic partnership" is not an answer usually have come down to labeling such unions in a way that connotes "second class" marriage ... accordingly, demote all "marriages" to domestic partnerships and let folks "marry" in their church or other place of worship.

Why not?

Jack Lyons

I'm calling 6-3 for a constitutional right to gay marriage. Roberts doesn't want to be on the wrong side of this. Though his argument is going to be based on sex discrimination (e.g., Adam can marry Betsy but Candace can't; solely in virtue of their genders, Adam can do something Candace can't). So that'll be some sort of concurrence. Probably 5 (including Kennedy) for due process and/or equal protection, then Roberts (with others joining) on this other argument. Thoughts?


Equal protection is problematic, no?

What is the standard for scrutiny?

Calvin Massey

anon: Some countries do separate civil marriage from ecclesiastical marriages. In Switzerland, for example, one must first marry in a civil ceremony before one can unite in a religious ceremony. As far as the state is concerned, it's the civil ceremony that matters. Your solution goes a step further and is certainly worth considering.
As for the standard for equal protection, if the Court thinks this is sex discrimination (as CJ Roberts seemed to indicate) the standard is "intermediate" scrutiny -- the govt has to prove that its actual purpose for the sex distinction is substantially related to an important state interest.




Isn't there an effort by some justices to move away from tiered scrutiny, and tailor the scrutiny to each case?

Here, there are lots of impositions on the right to marry. I'm not sure "three generations of idiots" or whatever the awful phrase was, would stand up today as a compelling interest to prevent incest, but the court seemed to accept those restriction.

The response of counsel to questions about polygamy (it is consent and coercion, she said repeatedly) was very unconvincing. In Alito's hypo, four lawyers want to marry.

Why not? Where is the consent issue? What is the coercion?

How can the court decide this? Aren't we precluding some competent adults from joining together in a loving and supportive relationship and depriving them of equal dignity? What about the children that these four are raising together??? *Many states already recognize that "parents" does not mean two people.

What about the elderly man who decides he wants to marry his now adult adopted child?

What is the "important state interest"? Does that test make sense here?

Were the questions about thousands of years of experience and tradition designed to uncover an interest?

Calvin Massey

Anon: All good questions. Justice Breyer, for one, concurred in today's opinion (Williams-Yulee v. The Florida Bar) by expressly noting his view that "tiered scrutiny" is not a pigeonhole array, but a spectrum of interests that must be balanced. Under tiered scrutiny the same balancing occurs but it is just smuggled into the doctrinal apparatus of tiered scrutiny. As for polygamy, polyandry, and so-called polyamorous relationships, I guess we will have to await developments. If the resolution of these issues is driven by social acceptance, I think polygamy, et al. is in the distance. But logically there isn't much difference. In any case adult adoption happens now without much murmuring, although the adopter sometimes regrets the decision (case in point: Doris Duke). Finally, I think the millenia musings from the bench are not so much designed to elicit a state interest as to reflect on the manner in which we, as a society, alter the definition of marriage. Is it by judicial fiat or actions of our elected representatives? There is no question that same-sex marriage has arrived; it's just a matter of how the transition will be completed.



Yes, but GM has arrived because so many state courts have said it has arrived. Perhaps these courts have used the rationale of Windsor, I haven't the count at hand and haven't read all the opinions. The voters approved GM in four states? Again, I haven't got these numbers handy.

Activism in modern America seems to involve creating the impression that any resistance is evil and futile. I'm not sure how I feel about this, but something about it seems not only shrill and brittle, but at a very deep level scary. I'm not in favor of any sort of tyranny, and if people wish to form unions, they can and should be able to do so. But, this debate is about the word "marriage," the "dignity" that must be afforded to some (and the submission of others to such notions) and that is a proxy for something far more troubling, I fear, than any outcome of the case in the SCOTUS.

(Witness, e.g., Indiana, which enacted a law nearly identical to that which was adopted by the feds without any objection *unanimously in the House and Senate and signed by Bill Clinton) to overrule the SCOTUS in Smith (the peyote case) and to restore a strict scrutiny balancing with respect to laws of general application that substantially burden first amendment rights: that's all! and witness the hysteria and misrepresentation!)

Now, in California, the entire state voted, the Constitution was amended, and all that was thrown out as a result of the actions of one district court judge. We are told that this was because the opponents of GM were evil and motivated by hatred of gay people, and thus this irregular procedure was justified.

We weren't told, however, whether GM is a fundamental right.

As they say, stay tuned!

The comments to this entry are closed.


  • StatCounter
Blog powered by Typepad