Certiorari Granted in Obergefell

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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31 Responses

  1. Michael Cain says:

    No word yet on the case I’ve been following for years, Hickenlooper v. Kerr. It was distributed for the Jan 9 conference, but no certiorari decision this week. This is an obscure one — it’s the Colorado case that challenges whether a state constitution that doesn’t allow the legislature to create new taxes or raise existing tax rates violates the guarantee of a republican form of government. So far all that’s being appealed is the decision on a preliminary motion. Defendants argued that it falls under the political question doctrine and should be dismissed out of hand — the District and Appeals Courts ruled that it’s sufficiently different from any previous challenge that there should be a trial.

    Myself, I’m hoping that cert is denied because I want to have the trial, but I’m clueless about which way the SCOTUS might jump.Report

  2. James Hanley says:

    Kennedy didn’t worry much about federalism in Romer or Lawrence. I understand your point that a trend is not a result, but he’s written the opinions for Romer, Lawrence and Windsor. I think this is his legacy, and I’d be shocked if he pulled a Moses.Report

    • Morat20 in reply to James Hanley says:

      I suspect the Supreme Court can see the lay of the land. 6-3, I think. Maybe 7-2.

      The parallels between this and Loving are too strong, and the consensus of the country has shifted so widely, that I think only Scalia and Thomas will be hold-outs for certain.

      There’s more than one way to write the decision that doesn’t upset and Constitutional apple-carts. Tie it to Loving and equal protection (“I can marry him but not her, based on gender alone? Seems suspect…”) and you’ve got a decision that doesn’t really extend federal powers anywhere they already aren’t.

      Gender already tends to pair with race for heightened scrutiny, and there’s a pretty solid lack of a case on the “anti-gay marriage” side. It seems to boil down to repeated versions of “But the children!” and “But history!” which is probably not going to sway a Court that can see how the wind is blowing.

      If you want to ascribe purely partisan motives, for Robert’s it’s an easy way to burnish is ‘responsible, centrist, apolitical cred’ with the chattering classes — I don’t think it really conflicts with any of his political or judicial hobby horses (he seems more corporatist) and it’d give him a lot of cover for, oh, kicking out the subsidies. (Which will be fun to see, insofar as he’ll either have to gut Chevron or play a fun game of ‘this case only’ which never looks good).Report

      • Scott Peterson in reply to Morat20 says:

        “I suspect the Supreme Court can see the lay of the land. 6-3, I think. Maybe 7-2.”

        I agree with your first sentence, and wouldn’t be shocked if Roberts joins the majority to get to 6-3, but 7-2 seems unlikely to me; who else do you see joining the majority in that case?Report

      • Morat20 in reply to Morat20 says:

        I’m not sure. I think one of the obvious three MIGHT jump ship if it’s a lost cause, but the smart money is 6-3. Alito, Scalia, and Thomas dissenting.

        Roberts writing the majority opinion and probably keeping it tailored very narrowly. (Deciding the marriage issue clearly, yes, but working to ensure it’s seen as an extension of Loving and not something that breaks any new ground, leaving it unlikely to be cited anywhere other than history books).Report

      • Burt Likko in reply to Morat20 says:

        Majority by Kennedy. The Chief is very much a gentleman, especially to his colleagues. If he votes in the majority, I predict he’ll delegate the majority opinion to Kennedy, because he knows this is Kennedy’s very special issue. If he’s not in the majority, then Kennedy will almost certainly be the most senior Justice in the majority, and he’ll keep it for himself.

        The only way I can see around this is if Scalia pulls the ultimate SCOTUS dick move and first sees the Chief voting against SSM, and then strategically votes in favor of SSM, and then reserves the majority opinion to himself so that he can write it as sarcastically and narrowly as he can. But Scalia a) is not a dick (notwithstanding his acerbic rhetoricial style), and b) among the most principled of the Justices and his past reasoning — reliance upon “original public meaning” of the text as an interpretive guide, there is no such thing as substantive due process, states have essentially plenary power over laws regulating public morals, the results of the political process deserve a very wide berth from the judiciary — essentially compels him to vote such that a state can choose to adopt a law defining marriage as excluding same-sex unions regardless of the provenance of the license. Not that his own socially conservative norms and preferences will put up any red flags to such a vote as they might in a case involving (say) pornography, but there’s no reason to think that when he votes this way, it’ll be motivated by those preferences — and note that he’s voted in favor of things that his own norms and preferences strongly dislike in the past.

        So Scalia won’t make a dick move like that. Kennedy gets the majority opinion, for sure.Report

      • Mike Schilling in reply to Morat20 says:

        But Scalia a) is not a dick

        Objection: assumes facts not in evidence.Report

      • Michael Drew in reply to Morat20 says:

        note that he’s voted in favor of things that his own norms and preferences strongly dislike in the past.

        According to his own account of his norms and preferences (perhaps). And it’s not like he has any reason to try to convince the world that he does this whenever his jurisprudential principles dictate he must, whether or not he actually does.Report

      • Alan Scott in reply to Morat20 says:

        Burt: Is that a thing that can even actually happen?

        I mean, at the very least if Scalia pulls that dick move, wouldn’t you basically get:

        Opinion for: Scalia joined by nobody
        Seperate Concurrence: Kennedy joined by Roberts, Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan

        which eliminates any value to Scalia of writing that opinion?Report

      • Burt Likko in reply to Morat20 says:

        There would be separate concurrences, but if the others agree with the reasoning, they’d sign on to it.

        But it’s not going to happen. Invest no anxiety in it.Report

      • James Hanley in reply to Morat20 says:

        I think Scalia is clearly a dick. He’s just not that kind of a dick.Report

  3. Saul Degraw says:

    What are the chances of the Supremes saying no to the first question but yes to the second?

    Also the cynic in me wonders if the court will approve gay marriage using Kennedy but then also let him writing the majority opinion in Halbig which denies healthcare to millions because they want to smack down Congressional Democrats.Report

    • Burt Likko in reply to Saul Degraw says:

      I’m beginning to think that this will be the way the baby gets split. Ohio doesn’t have to issue its own SSM licenses (federalism) but must respect a Massachusetts license (full faith & credit, due process). Right now I’m about 50-50 that versus full SSM for the reason stated by the good professor.Report

      • Road Scholar in reply to Burt Likko says:

        Which would effectively be a full “win” anyway. A few years, maybe ten, of you can be married here but not get married here and even a Republican should be bright enough to see the absurdity. But not before some enterprising folks make a killing off of setting up wedding chapels near the state line!Report

      • This would seem bizarre, even for the courts. Let’s pick a likely hypothetical if states don’t have to issue their own SSM licenses — Montana, Idaho, Utah, Wyoming and the Dakotas choose not to issue such licenses. Montana provides certain privileges to married couples. An opposite-sex couple in rural eastern Montana can obtain access to those privileges by hopping down to the county seat. The same-sex couple living next door, to obtain the same privileges, must arrange one or more trips of several hundred miles (depending on waiting periods, residency requirements, etc). That seems like a sufficiently different burden that it wouldn’t stand up.Report

      • Saul Degraw in reply to Burt Likko says:


        I think it would be a temporary inconvenience and possibly a great expense for lower income SSM people but Road Scholar is right that a ruling that says states must recognize SSMs from other states is a victory which will eventually get the ball rolling.

        Last Sunday, I was reading the New York Times (I am an old soul and enjoy print newspapers) and there was an ad from something like the Fort Lauderdale tourist board. The ad featured a heterosexual couple, a lesbian couple, and a gay male couple. All were walking down the aisle after saying I do with triumphant/happy looks on their faces. The message of the ad was clear “Come down to Fort Lauderdale and have your destination marriage here whether you are gay or straight.” Eventually people are going to figure out that they are losing out on good money by being opposed to SSM. Now there are always going to be homophobes who are opposed to SSM on their wrong views of morality but I suspect that there are lots of politicians and others whose opposition is more calculated and they will just turn the tide and figure out that more ways to profit is good.

        And with this I revealed that I am not completely opposed to Capitalist or neo-liberal argumentation.Report

      • Kolohe in reply to Burt Likko says:

        That seems like a sufficiently different burden that it wouldn’t stand up.

        I don’t thing the fact that certain parts of states are geographically distant from other states with different laws plays much into any Supreme Court rulings, even equal protection jurisprudence. Look, for example, at the status of abortion services that are now provided in Mississippi where the fact that a there is only a single provider in the entire state has not made that state’s abortion regulations at variance with the current federal court guidelines (per the link, adding additional regs which would have likely closed down that one clinic *was* deemed a violation)

        (though otoh, the judge explicitly wrote “A state cannot lean on its sovereign neighbors to provide protection of its citizens’ federal constitutional rights,” – but I don’t know if the current Supreme Court would necessarily agree)Report

      • James Hanley in reply to Burt Likko says:


        Businesses in Iowa, even, are advertising themselves as offering wedding services to same-sex couples. (For the record, that’s part of the reason I’m not sympathetic to attempts to force every business to do so–let assholes pay for their own smug moralism and give your money to those who want it.)Report

  4. Let’s assume the SCOTUS says states don’t have to recognize ssm and effectively overturns its non-ruling from a few months back that had expanded ssm rights. Can those states now retroactively overturn the marriages that have taken place? I’m not asking if they would, but could they do so legally?Report

    • If that happens, there is probably still a barrier to refusing to recognize previously-recognized licenses. Let’s take a state like Utah, for example, which fought tooth and nail to keep its SSM ban but has consistently lost. About 900 marriage licenses were issued to same-sex couples in the (IMO feigned) legal confusion about what county clerks were supposed to do in the wake of those rulings before stays and petitions got that all cleared up.

      If the Obergefell cases result in a declaration that states do have to power to regulate marriage as they wish and that means, for Utah, not granting licenses to same-sex couples, there’s 900 couples out there in Utah who got married. To say “Nope! You’re not married anymore!” would now take something away from them that they already have. Which in some cases might be okay, but the legal status of marriage is a “liberty interest” for purposes of the Due Process Clause — viewed as a procedural rather than a substantive matter. To take away someone’s liberty interest requires a) advance notice of the basis for loss of the interest, b) notice to the individual(s) to be deprived of the state’s intent to take the interest away, c) an opportunity to be heard by an impartial decision-maker before the takeaway takes effect if practical, or soon thereafter if there is an emergency, d) the ability to retain counsel and present evidence and argument to the decision-maker, e) the ability to confront evidence and cross-examine witnesses advanced by the state in favor of deprivation of that interest, and f) a presumption governing the decision-maker’s conduct against deprivation of the interest until and unless the state meets the appropriate burden of proof (e.g., preponderance of evidence).

      So that would mean just shy of a thousand individual evidentiary hearings in which some neutral decision-maker has to compare the state’s interests in invalidating each couple’s individual marriage against the couples’ individual interests in being married. In other words, a lengthy, expensive, and uncertain farce. Far more likely that SCOTUS, or a court in Utah, will order what California’s courts did after Prop. 8 was adopted but before it was overturned: “If you got married during the time it was legal for you to get married, you get to stay married. If you missed the window of opportunity, too bad for you. Have a nice vacation in Massachusetts, you same-sex lovebirds, and we’ll deal with recognizing that license, or not, when you get back.”Report

      • Thanks, Burt, for the explanation.Report

      • Saul Degraw in reply to Burt Likko says:


        I offer this as a counter:


        “In theory, one might argue that the consequences are irrelevant — the Supreme Court has to simply apply the law, consequences be damned. When it comes to the Supreme Court, however, this simple answer is not very persuasive. Almost by definition, cases get to the Supreme Court because reasonable people can disagree about what the law requires. When the law is ambiguous, it’s not only understandable but desirable for the court to factor in the consequences. Studies of judicial decision-making have tended to confirm that judges take policy consequences into account.

        Saying that judges are pragmatists in practice, however, doesn’t necessarily get us very far. The swing votes on the court could evaluate the consequences of destroying the federally established state exchanges very differently. Perhaps Roberts and Kennedy will be dismayed at the prospect of millions of people losing their insurance. But perhaps they will be more concerned with teaching congressional Democrats a lesson. After all, congressional Republicans have never found large numbers of people lacking health insurance a particularly pressing issue — why should conservative Republicans on the Supreme Court be any different? The pragmatism of the justices can cut both ways.”

        So you have another case where the consequences for ruling one way might be more dire including tens of millions of people losing their health insurance and the chances of increased medical debt and bankruptcy. There were a bunch of stories during the week about how medical bankruptcy is down because of the Affordable Care Act. Yet there are seemingly plenty of people who would take this horrible consequence to affirm their views on constitutional jurisprudence and to kick Democrats/liberals.Report

      • Kolohe in reply to Burt Likko says:

        The question one should ask themselves about the Burwell cases is: “Do I really want a Republican administration to be able to drive through the loophole of ‘That’s not what it says, but I know what they meant’?”

        (That said, to plagiarize from a friend of mine: “Yeah I’m favorably disposed to textualism in principle. But Scalia likes to define words to get the decision he wants”)Report

      • The question one should ask themselves about the Burwell cases is: “Do I really want a Republican administration to be able to drive through the loophole of ‘That’s not what it says, but I know what they meant’?”

        But that already happens, recently in United Air Regulatory Group v. EPA on regulation of emissions of CO2 from stationary sources. There were three groups of justices, and all of them said that the Clean Air Act didn’t mean “must regulate any source emitting in excess of 250 tons per year of any pollutant” even though that’s the clear language of the statute. Instead they made up all kinds of stuff about what Congress intended, then sliced and diced the situation in order to create an opinion that allowed regulation under certain circumstances that just happened to include all of the big coal plants.Report

      • Blech. “Utility”, not “United”. As I get older, my fingers seem to be developing a mind of their own and doing word substitution.Report

      • Burt Likko in reply to Burt Likko says:

        No, @michael-cain , that could be autocorrect. Happens to me a lot too, especially when I post from my tablet.Report

      • Unfortunately, @burt-likko , I’m posting from my Mac in my office today, and while I let Firefox point out misspelled words in the Comment box, I don’t let it autocorrect. Have to take the blame for today’s errors myself.Report

      • Will Truman in reply to Burt Likko says:

        Autoconnect is a bench.Report

      • Saul Degraw in reply to Burt Likko says:


        What Michael Cain said.


        I see what you did there.Report

      • Mike Schilling in reply to Burt Likko says:

        There were three groups of justices, and all of them said that the Clean Air Act didn’t mean “must regulate any source emitting in excess of 250 tons per year of any pollutant” even though that’s the clear language of the statute.

        The clear language of a statute isn’t dispositive, unlike stuff some guy says on YouTube.Report

      • Will H. in reply to Burt Likko says:

        If that’s the case. Nits:

        I call Question # 2 dead in the water. There are already states which refuse to recognize marriages from other states based on relation of persons.

        The right to familial relations is implicit in the Fourth Amendment.

        And if a valid liberty interest is involved, the due process considerations are valid; but this blurs the distinction between a void order, and one which is voidable. If the licenses were void in the first place, no liberty interest is involved.

        As I understand it, the argument is that the statutes are unconstitutional as applied, rather than unconstitutional on their face. That one has a chance. “Unconstitutional on their face” I give very little chance whatever.

        One of the particularities about gender discrimination is that, to my knowledge, in all cases, it relates to treatment of the other gender. Conflating sexual orientation with gender is defining a state as an attribute; whereas the one is fully realized within the person, while the other is realized solely through interaction.Report