I have several times thought about the question: If I were a Supreme Court Justice, how would I rule on Obergefell v. Hodges? And one part is easy. A marriage contracted in one State has always been considered as valid in all others oven where the other State would not perform the marriage. First cousins cannot marry in Ohio (one of the states involved in the Obergefell case!) but it was noted in a lower court's decision that first cousins' marriages in other States have been honored in Ohio. This is a general rule, and clearly derives from Article IV, Section 1 of the Constitution:
The other question before the Court is more difficult. Does a State have to allow same-sex marriages to be performed? And the normal rule is that each State sets the rules there. One State may allow 13-year-olds to marry; another may set the minimum at 16, and the Constitution has always been held to permit such differences. The only case I know of where the Court has invalidated a State law restricting marriage is Loving v. Virginia, which invalidated anti-miscegenation laws. Is this a case like Loving? It would only be so if one answers Chief Justice John Roberts' question in the affirmative:
And based on Roberts' question, perhaps likening this case to Loving isn't so far-fetched. So perhaps if I were a Supreme Court Justice, I could rule that way. But I'm not sure. And we certainly do not know how the nine people who actually sit on the Court will rule.
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
The other question before the Court is more difficult. Does a State have to allow same-sex marriages to be performed? And the normal rule is that each State sets the rules there. One State may allow 13-year-olds to marry; another may set the minimum at 16, and the Constitution has always been held to permit such differences. The only case I know of where the Court has invalidated a State law restricting marriage is Loving v. Virginia, which invalidated anti-miscegenation laws. Is this a case like Loving? It would only be so if one answers Chief Justice John Roberts' question in the affirmative:
I’m not sure it’s necessary to get into sexual orientation to resolve this case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?
And based on Roberts' question, perhaps likening this case to Loving isn't so far-fetched. So perhaps if I were a Supreme Court Justice, I could rule that way. But I'm not sure. And we certainly do not know how the nine people who actually sit on the Court will rule.
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