I’ve been reading transcripts of yesterday’s oral arguments at Supreme Court in Obergefell v. Hodges. They are divided into two parts: transcript of first part of oral arguments in Obergefell vs. Hodges, relating to the question, “Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?” and the second part, seeking an answer to, “Does the Fourteenth 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?” (If you have two and half hours to wile away there are audio files of the arguments here and here.)
Question 1 is argued ably by Mary Bonauto (seconded by Solicitor General Donald Verrilli Jr. and defended by John Bursch) and Question 2 by Douglas Hallward-Driemeier (defended by Joseph Whalen). If the court decides that the answer to Question 1 is Yes, then Question 2 is moot. All the justices agreed that this was so. This made Q2 feel a little anticlimactic in some ways but intensely interesting in others.
On Q1, Kennedy is probably the swing vote. Kagan, Ginsberg, Sotomayor, and Breyer will vote Yes. Thomas and Alito will definitely vote No; Scalia most probably No; Roberts very possibly No. Kennedy, therefore, feels the responsibility keenly. The basic issue for him seems to be weighing millennia of tradition against the suffering of real people.
During the arguments concerning Q2, Scalia and Alito dragged in the usual inflammatory analogies to polygamy and underage marriage; incest got tossed in for good measure. (I can’t remember by whom. At least no one mentioned bestiality.) Roberts seemed testy. Sotomayor and Kagan were very clear in their position: they want Q1 answered with a Yes, and Q2 therefore doesn’t matter much. Breyer was having a lot of fun—he made the court laugh a couple of times. Ginsberg seemed to be drawing out Hallward-Driemeier, helping him lay out his argument. Thomas said nothing (as usual). The most telling questions, for me, came from Scalia (he wanted to talk about Article IV of the Constitution), and from Kennedy—who, like Thomas, said nothing at all, most likely because he’s wrestling with Q1.
Right now I’d say that if Q2 were the only question before the court, Scalia might vote Yes. Roberts too, maybe. But what was making them both grumpy is the understanding that Yes on Q2 makes very little sense without Yes on Q1. Law logic vs. their conservatism is killing them.
My hope is still for Yes on Q1, that Kennedy will listen to his conscience. At the very far reaches of the hope universe, there’s also a tenuous hint of a wisp of possibility that Roberts and Scalia might say Yes, too, and there’ll be a 7-2 victory for same-sex marriage. (What can I say? On some level, I’m always open to miraculous possibilities.)
I’ll settle for 5-4. We’ll find out in two months.