By Cara L. Gallagher, weekend contributor
Who has two thumbs, a lame but accommodating social life, and listened to 150 minutes of oral arguments about same-sex marriage this weekend? This girl.
By now, you’ve likely read or seen a lot of coverage recapping this term’s same-sex marriage cases bundled into Obergefell v. Hodges. Certainly if you have the time and inclination to listen to the oral arguments, do it. The link to both recordings – two separate recordings uploaded to the Court’s website because the traditional time of 60 minutes for oral arguments was extended since five cases were consolidated into one – is here. But if you’re a functioning human being with a life and no time to listen to oral arguments, here’s what I learned after listening to the oral arguments, a couple podcasts, and a few articles.
1. This is a constitutional case, not a statutory case. The two primary questions in the cases – whether gay couples can marry and whether states must recognize out-of-state marriage certificates of same-sex couples – are about the 14th Amendment’s equal protection and due process clauses. Many SCOTUS cases are about policies, or statutes, rather than straight constitutional cases. People often try to make statutory cases into constitutional issues when they’re not, like Hobby Lobby, which many perceived was a 1st Amendment right to religious practice case rather than a case about a statute passed by Congress called the Religious Freedom Restoration Act (RFRA).
2. Just before Solicitor General Donald Verrilli started to defend the same-sex couples on behalf of the government, a man sitting in the general public seats shouted his admonishment of homosexuality. The audio makes it hard to hear specifics, but reporters inside the Court wrote the man stated, “The bible teaches us that, if you support gay marriage, then you can burn in hell” and that it’s an abomination. Marshals carried him out and later Justice Scalia replied, “That’s rather refreshing actually.” Whether Scalia found the message or the messenger of the outburst refreshing – since it wasn’t another Citizens United condemnation from frequent Supreme Court protestors 99Rise – was unclear. His commentary was well-received garnering laughs from the audience.
3. This case has significant political implications to the 2016 election. I can’t take credit for this observation because I didn’t consider the political fallout post-decision until I listened to a podcast about the case. No doubt, the candidates already have a response in the hopper for a post-opinion sound bite, late June. Rubio and Paul have already said they believe in traditional marriage between one man and one woman and that the states regulate marriage laws, not the Courts. Huckabee thinks marriage is up to a state, a man, a woman, and the couple’s faith.
If the Court decides there is no constitutionally protected right for same-sex couples to marry, upholding bans in 14 states, the Democratic candidates will blast the Court for violating the human rights of same-sex couples securing support they already have from gay voters. Republicans will consider this a win and quietly commend the Courts for showing deference to the states. On the other hand, if the Court rules in favor of not only same sex marriage but also universal recognition of marriage certificates in all 50 states, Hilary and Bernie celebrate and the issue becomes a political football for Republican candidates to run with as they clamor to the right.
A decision in the Obergefell case should be announced in late June.
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