Next month will bring the verdict by the US Supreme Court on the same-sex marriage case. Here is my entirely speculative narrative of what I think will happen, based on the hearings and my perceptions of the justices’ views. The fact that the US Supreme Court did not take up any of the challenges to same-sex marriage cases as long as US Appeals Courts across the country upheld them suggests to me that the Supreme Court was deeply split on what to do about this issue.
It takes four yes votes among the nine justices to agree to hear a case. The four justices who are very likely to favor the right of same-sex marriage (Kagan, Sotomayor, Ginsburg, and Breyer) had no reason to agree to a challenge of the Appeals Courts verdicts as long as they were going their way. They could just wait and see it becoming a fait accompli across the nation while those deeply opposed (as I think Alito, Scalia, and Thomas are) may have felt that there was a real risk that either Kennedy or even Roberts might go against them and this would end up with the US Supreme Court giving the stamp of approval to it. They may have preferred to duck having to take a stand on the issue as long as they could.
But as soon as the Sixth Circuit upheld the right of states to not allow same-sex marriage and not recognize such marriages performed by other states, the four in favor of it must have felt they had to move and voted to accept the case.
I suspect that their side will draft an initial opinion that will try for the maximal outcome, that states must recognize the right of same-sex couples to marry and also recognize marriages legalized in other states. They will try to win over Kennedy and Roberts to their side but if they fail (as I fear they might), then they will try for a fallback position of allowing states to decide if they want to allow same-sex marriage or not (making the rules of marriage a states-rights issue), but requiring recognition of marriages contracted elsewhere under Article IV of the US Constitution that requires states to respect the decisions of other states unless there is a compelling reason not to. This was something that was even floated by Alito and Scalia during the hearings suggesting that it is something that might win over Kennedy and Roberts. While this effectively results in same-sex marriage being legal across the nation as long as even a single state allows it, the justices opposed to such marriages can say that the court did not formally give its sanction to it.
This fall back position is not without its own complications. For one thing it will now require couples in some states to go to others to get married, which is unfair and tedious, but maybe they could go to states where they would also like to honeymoon, thus killing two birds with one stone.
The more complicated problem is what to do with those couples that already got married in states where the federal courts declared that the state bans were unconstitutional. Those bans now get reinstated and this puts those marriages in a state of uncertainty Are those marriages still legal or will those couples also have to go to other states and get married again? And what of any actions taken by those married couples in the interim after the first marriage but before the second marriage? Are those actions legally valid?
Maybe the prospect of having to clean up such a mess may result in either Kennedy or Roberts saying to hell with it, lets uphold the right to same-sex marriage and be done with this issue once and for all, especially since the nation and the world is rapidly moving towards acceptance anyway.
That to me is the most hopeful scenario by which the court decides in favor of same-sex marriage. Let’s see.