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Title: Back PRIORS AND PRECEDENT Same-Sex Marriage Gets Its Big Day At The Supreme Court
Source:
FiveThirtyEight
URL Source: http://fivethirtyeight.com/datalab/ ... -big-day-at-the-supreme-court/
Published: Apr 28, 2015
Author: Oliver Roeder
Post Date: 2015-04-29 12:33:58 by Jameson
Keywords: SCOTUS, Marraige, 538
Views: 25324
Comments: 119
The question of whether there is a constitutional right to same-sex marriage will finally have its day in court this week. On Tuesday, the Supreme Court will hear two and a half hours of oral argument in a quartet of cases on this subject. If the court reverses lower court rulings that upheld bans on same-sex marriage, it could mean that every state would have to honor such marriages performed in other states, and could require every state to permit them. A decision is expected this summer, most likely in late June. In this edition of Priors and Precedent, we’ll dig into some data and two sources of predictions for this landmark case. First, some background.
The Case
The petitioners are 12 couples and two widowers from states that bar same-sex marriage. A recent profile by NPR dubbed them “‘accidental activists,’ meaning they filed lawsuits not to further a cause but because of the way the bans affected their lives.”
The challenge to the bans, known as Obergefell v. Hodges, is actually four cases rolled into one.1 The court consolidated them and limited its consideration to these two questions:
Does the 14th Amendment require a state to license a marriage between two people of the same sex? Does the 14th Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
The first is called the “marriage” question, the second the “recognition” question. The court will hear 90 minutes of argument on the former and an hour of argument on the latter. Civics refresher: The 14th Amendment guarantees certain rights under its “due process” and “equal protection” clauses.
If the answer to the first question is “yes,” then the answer to the second is irrelevant, of course.
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Begin Trace Mode for Comment # 25.
#9. To: Jameson, all (#0)
Obergefell v Hodges, Dir. Ohio Department of Health, U.S. Supreme Court No 14-556, Official Transcript of Oral Arguent, April 28, 2015. Transcript of Oral Argument, Part 1 of 2, at 10:02 a.m. Page 23, Justice Scalia speaking:
"REAL"? Wait a minute! These judges are so enamored with their profession and high position that they have persuaded themselves that the civil/legal marriage is the real one, and that the church/sacramental marriage is a mere byproduct or quaint custom without a real substance. Soon, they will try to change the laws of universe and movements of celestial bodies. By a decree.
Soon, they will try to change the laws of universe and movements of celestial bodies. By a decree. Amen!
There are no replies to Comment # 25. End Trace Mode for Comment # 25.
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12 But once it's -- it's made a matter of
13 constitutional law, those exceptions -- for example, is
14 it -- is it conceivable that a minister who is
15 authorized by the State to conduct marriage can decline
16 to marry two men if indeed this Court holds that they
17 have a constitutional right to marry? Is it conceivable
18 that that would be allowed?
19 MS. BONAUTO: Your Honor, of course the
20 Constitution will continue to apply, and right to this
21 day, no clergy is forced to marry any couple that they
22 don't want to marry. We have those protections.
23 JUSTICE SCALIA: But -- but right to this
24 day, we have never held that there is a constitutional
25 right for these two people to marry, and the minister is
Page 24
1 -- to the extent he's conducting a civil marriage, he's
2 an instrument of the State. I don't see how you could
3 possibly allow that minister to say, I will only marry a
4 man and a woman. I will not marry two men. Which means
5 you -- you would -- you could you could have
6 ministers who who conduct real marriages that -- that
7 are civilly enforceable at the National Cathedral, but
8 not at St. Matthews downtown, because that minister
9 refuses to marry two men, and therefore, cannot be given
10 the State power to make a real State marriage. I don't
11 see any -- any answer to that. I really don't.
12 JUSTICE SOTOMAYOR: Counselor, there have
13 been antidiscrimination laws in various States; correct?
14 MS. BONAUTO: Yes, Your Honor.
15 JUSTICE SOTOMAYOR: Antidiscrimination laws
16 regarding gay people.
17 MS. BONAUTO: Correct.
18 JUSTICE SOTOMAYOR: And in any of those
19 States, have ministers been forced to do gay marriages?
20 MS. BONAUTO: Of course not, Your Honor.
21 And --
22 JUSTICE SCALIA: They are laws. They are
23 not constitutional requirements. That was the whole
24 point of my question. If you let the States do it, you
25 can make an exception. The State can say, yes, two men
Page 25
1 can marry, but -- but ministers who do not believe in --
2 in same-sex marriage will still be authorized to conduct
3 marriages on behalf of the State. You can't do that
4 once it is a constitutional proscription.
5 MS. BONAUTO: If one thing is firm, and I
6 believe it is firm, that under the First Amendment, that
7 a clergyperson cannot be forced to officiate at a
8 marriage that he or she does not want to officiate at.
9 And since there were several other questions, if I may.
10 JUSTICE SCALIA: He's not being required to
11 officiate. He's just not given the State's power,
12 unless he agrees to use that power in -- in accordance
13 with the Constitution. I don't -- seems to me you
14 have to -- you have to make that exception. You can't
15 appoint people who will then go ahead and violate the
16 Constitution.
17 MS. BONAUTO: I think if we're talking about
18 a government individual, a clerk, a judge, who's
19 empowered to authorize marriage, that is a different
20 matter that they are going to have to follow through,
21 unless, again, a State decides to make some exceptions.
22 In Connecticut, after the court permitted marriage, it
23 did actually pass a law to do deal with implementation
24 issues, including these kinds of liberty issues.
25 JUSTICE SCALIA: Because it was a State law.
#14. To: nolu chan (#9)
you could have ministers who who conduct real marriages that -- that are civilly enforceable
#25. To: A Pole (#14)
"REAL"? Wait a minute! These judges are so enamored with their profession and high position that they have persuaded themselves that the civil/legal marriage is the real one, and that the church/sacramental marriage is a mere byproduct or quaint custom without a real substance.
Replies to Comment # 25.
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