Having just written an article about my confusion regarding whether we should allow bakers to be bigots, I want to talk a little bit about the Supreme Court oral arguments concerning Obergefell v Hodges. The are two questions before the court. The first one is whether same sex marriage should be mandated nationwide. The second, should the court find against the plaintiffs in the first, is whether states that do not allow same sex marriage will be required to recognize same sex marriages in other states — this is called “reciprocity.” From the standpoint of the law, the second question is more important. From the standpoint of civil rights the first question is key.
The reason the second question is more important as a matter of law is because not doing so causes all kinds of legal issues. States must recognize the power of other states to run their affairs. If a same sex couple is married in California, that marriage is now accepted by the federal government. But it isn’t recognized by, for example, the state of Ohio. What happens if that couple has a child and then they move to Ohio? Suddenly the couple isn’t married and the child is the responsibility of… who? There are all kinds of less consequential issues that come up when states do not reciprocate in this matter.
The first question is a matter of civil rights because it involves equal protection. If the court finds for the defendants in the first question and for the plaintiffs in the second, they will be setting up a situation where rich members of the Ohio LGBT community can fly over to New York and get married. But lower income members can’t do that. So in effect, poor LGBT people will not have the same rights. Now one could argue — And I would! — that this kind of discrimination is everywhere in our society. But that’s hardly a justification for allowing it in this case. Same sex marriage in Ohio would be a kind of Animal Farm equality, “All LGBT people are equal, but some LGBT people are more equal than others.”
Having said all this, I tend to think that the Supreme Court is going to worm out of this — splitting the difference by just finding for the plaintiffs in the second question. But maybe not. At BuzzFeed News, Chris Geidner seems to think that Kennedy is going to go for full marriage equality, Supreme Court Appears Ready To Rule In Favor of Marriage Equality. The basis for this claim is something interesting that Kennedy did. The hearing was divided between the two questions. During the hearing for the first, Kennedy was dominant, asking many questions and making many comments. But during the hearing for the second question, all he did was ask if the court could rule differently on the two questions.
I don’t find this particularly heartening. This is because during the first question’s discussion, he asked about the history of marriage being between “one man and one woman.” As Huffington Post summarized it, Supreme Court Mulls How Marriage Equality Will Come About. So there doesn’t seem to be any question that Kennedy thinks that same sex marriage should be made legal nationally. I took his question in the second half of the hearing to mean that he thought that the plaintiffs had the better of the argument, but for the sake of social conservatives, we should go slow and just mandate reciprocity.
I still think this is a good outcome. But it will indicate just how political the Supreme Court really is. On the other hand, if the court decides to not ruffle the feathers of the social conservatives and then finds for the plaintiffs in King v Burwell (the current Obamacare case), it will mean that they are just a bunch of hacks. Let’s hope not.