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Andrew McKay’s Afternoon Edition

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05/04/15  Will Gay Marriage Be the Law of the Land?

Last week, the Supreme Court heard oral arguments in the gay marriage cases that have finally percolated up to the final arbiter of our laws.  In a marathon two and a half hours, the Court entertained two different but tightly related questions.  First, does the Constitution require states to let same sex couples marry even when the voters of that state have said they do not want to let them?   Second, if the Constitution permits each state to decide for itself about letting gays marry, must states that opt not to do so nevertheless recognize as valid such marriages created elsewhere?  What can we expect the Court to do based on the oral arguments we heard?

The second question is easier than the first, because it presumes a state is free to prevent gay marriage.  If all states must marry gays, then there can be no issue about recognizing gay marriages from other states.  It’s a moot point.  Thus, the recognition problem only comes into play with the assumption that the Court has already said people do not have a right to marry same gender spouses.  They can be granted that privilege if the state chooses, but it is not a right.

Although it’s never a certain business to infer the Court’s views from oral arguments, this was a situation where the questions posed to the attorneys did indicate the Court’s position on the hypothetical.  Once a state is presumed rationally able to opt in or out on gay marriage, it would be absurd to force it to recognize those marriages if made elsewhere since this would allow other states to impose the practice upon them from outside.  People in Indiana would just go to Illinois to get married and return, thus forcing Indiana to have de facto gay marriage by indirect means.  So if the states win their appeal on gay marriage itself, they are very likely to win on not having to recognize such marriages created elsewhere as well.

But what about that primary question?  Here things are, as you might expect, much thornier.  Nevertheless, the root question is fairly simple.  Is gay marriage a whole new thing, or is gay marriage just a new twist on a very old thing?  If it is just a twist, then preventing gays from participating is a form of unconstitutional discrimination just as denying marriage between blacks and whites was.  If, on the other hand, it is a whole new thing, then there is no discrimination and states are free to do as they please.  There are many complex legal questions here but that’s the essence of the question. On this matter, most observers agree that the key is whether Justice Anthony Kennedy will see permitting gay marriage as the final step in a long train of opinions he has authored in that direction or as a new and radical leap forward that should not be imposed upon states by the federal government.  Unfortunately, his questions for both sides were pointed and did not reveal any reliable clues which way he would swing.

However, there was a brief moment in the proceedings that indicated an entirely different  outcome might be on the horizon.  Chief Justice John Roberts asked at one point why this all isn’t just a matter of gender discrimination.  If Jane can marry Bob but not Martha, then isn’t the state unconstitutionally discriminating against Martha because she’s a woman?  There are at least three reasons why this might indicate that June will bring a 6-3 or at least a 5-4 ruling in favor of national gay marriage, the majority being led by the Chief Justice.

First, it’s elegant, and Roberts loves elegance.  It avoids the court even figuring out what marriage is at all.  Whatever it is, you can’t let a woman do it but not a man, or vice versa.  Simple and neat.  Second, it gives Kennedy a way out of his own reasoning.  The basis of the same-sex case he’s written in the past has been the right to privacy of the bedroom, but privacy is a much less compelling principle when you’re talking about public ceremonies, certifications, and benefits.   Sex is private, but marriage is public.  Thus, shifting to gender discrimination as a principle would get the result without pushing the privacy reasoning beyond its pretty real limits.

Third, it lets Roberts give the country what it seems to want at this moment in history.  Although many states have traditional marriage amendments, it’s a real question how many of them would re-pass those amendments today, and the evidence of this is that the opposition to gay marriage has largely proven to be a paper tiger in virtually every state other than Alabama.  And remember, Roberts has done this before, suddenly discovering at the final moment that the individual mandate in Obamacare was a tax not a penalty and therefore well within the government’s taxing authority.

Fourth, it sidesteps the problem that looms if the court focuses on the larger question of what marriage is:  what about polygamy?  In an old case from the 1800s the Court said states can outlaw polygamy, and very few people these days disagree.  But how can the Court embrace marriage-as-any-love without embracing marriage-as-many-love?  By focusing on gender discrimination, the court avoids anything that would force it to accept polygamy.

So how will they vote?  We’ll know in a few months, but if you ask me my opinion, look for a 6-3 ruling for gay marriage written by John Roberts and a scathing dissent by Antonin Scalia.  Scalia will be right, but he will have lost the argument.