• Skip to primary navigation
  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer
  • Advertise
  • Contact Us
  • About Towleroad
  • Towleroad on Social Media
  • Privacy Policy

Towleroad Gay News

Gay Blog Towleroad: More than gay news | gay men

  • Travel
  • Sports
  • Law/Justice
  • Celebrities
  • Republicans
  • Madonna
  • Books
  • Men
  • Trans Rights
  • Royals
  • Monkeypox
  • Marjorie Taylor Greene: Antifa are ‘fascists’ because ‘they defend the drag queens targeting our children’
  • Guaranteed Stimulus Checks To Transgender: Checks Starting to Go Out This Month
  • Soccer-Three arrested for alleged homophobic chanting at Liverpool-Chelsea game

Marriage at the Supreme Court 2.0 Analysis: Recognizing Valid Out-of-State Marriages

Ari Ezra Waldman April 28, 2015

BY ARI EZRA WALDMAN

THIS ANALYSIS IS CONTINUED FROM PART 3. FOLLOW ALONG ON THE AUDIO CLIP FOR QUESTION 2.

DriemeierAs we have discussed, the single consolidated case of Obergefell v. Hodges raised two legal questions. The first question, which we have been discussing, is whether the Fourteenth Amendment prohibits States from banning gays from marrying. The second question, inspired by several plaintiff couples who married in one state but live in states that do not allow gays to marry, asks whether the Fourteenth Amendment allows a states to refuse to recognize valid marriages performed out of state.

A few preliminary notes before we get to the argument:

  • If plaintiffs win on Question 1 — if the Fourteenth Amendment prohibits marriage discrimination — Question 2 is irrelevant. Plaintiffs would be able to go home and get married.

  • It is possible that the Court could agree with one party on one question and disagree with that party on another question. For example, the Court could say states have to recognize valid out of state marriages, but they need not be forced to perform them on their own. That's a tough middle road because it would ultimately result in a nationwide right to marry, but cause significant hardship.

WhelanThe argument lasted a little under an hour. Doug Hallward-Driemeier (above, right), an accomplished Supreme Court practitioner, argued for marriage equality. Mr. Hallward-Driemeier, like his colleague Mary Bonauto, did a fine job under difficult circumstances. Ms. Bonauto had a hotter bench. Compared to both, Mr. Joseph Whelan (right), Solicitor General of Tennessee, was an absolutely failure. He started his argument at about minute 24. He didn't know the law, made obvious mistakes on basic material, and had the justices asking questions as if Mr. Whelan were back in first year of law school. The first 10 minutes of his argument amounted to the justices challenging him on basic questions of law. Justice Breyer, often playing the role of the referee today, took a professorial approach: "what case says that", for example, When this happens, you know your day is going poorly.

A few notable things happened (and didn't happen):

  • Justice Kennedy did not ask a single question on Question 2. This could be a tip of that hat to where Justice Kennedy is leaning. Question 2 is irrelevant if the Court decides that States cannot ban gays from marrying. That Justice Kennedy didn't have any questions — that he wasn't concerned about any legal issue — may suggest that he doesn't need to address Question 2. 

    And it wasn't just Justice Kennedy. There was decidedly fewer questions, and fewer hostile questions, from the bench during Question 2. This suggests that several members of the Court are indeed ready and willing to decide on Question 1.

  • At Minute 25, Justice Scalia wanted to know why the Full Faith and Credit Clause, which requires states to recognize the rulings and decisions of other states, does not control Question 2. It took Mr. Whelan some time, after a detour into several incorrect statements of law, to finally aver that Supreme Court precedents have distinguished between court orders and things like marriage licenses. Orders and judgments get full faith and credit; traditionally, marriage licenses do not. Notably, it doesn't have to be that way. The Supreme Court could say that the clause could apply to marriage licenses.

The rest of the argument seemed like an anti-climax. Mr. Hallward-Driemeier did a fine job going back to his talking points and framing the debate according to the narrative of his clients. Mr. Whelan failed miserably from question to question.

Stay tuned to Towleroad for analysis once we take a few steps back.

And if you missed the earlier parts of this analysis, you can find them here: Part 1, Part 2, Part 3…

***

Follow me on Twitter.

Ari Ezra Waldman is Associate Professor of Law and the Director of the Institute for Information Law and Policy at New York Law School. He holds a Ph.D. from Columbia University, a J.D. from Harvard Law School, and a B.A. from Harvard College. Ari writes regular posts on law and various LGBT issues.

Topics: News, Supreme Court More Posts About: Ari Ezra Waldman, gay marriage, Law - Gay, LGBT, News

Related Posts
  • Former Roommate Indicted For Murder Of Florida LGBTQ Activist Jorge Diaz-Johnston, One of the Public Faces In State Fight For Marriage Equality
  • Russia Blocks Facebook, Accusing it of Restricting Access to Russian Media;
  • Survivor Benefits Payments For Same-Sex Partners Are Being Paid Under Biden, But Many Don’t Even Know They Qualify
  • Guaranteed Stimulus Checks To Transgender: Checks Starting to Go Out This Month

    Guaranteed Stimulus Checks To Transgender: Checks Starting to Go Out This Month

    Published by ValueWalk Guaranteed income plans have gained prominence since the COVID-19 pandemic. Several states and local governments have come up with similar programs targeting specific groups over the past couple of years. Last year, the …Read More »
  • Soccer-Three arrested for alleged homophobic chanting at Liverpool-Chelsea game

    Soccer-Three arrested for alleged homophobic chanting at Liverpool-Chelsea game

    Published by Reuters UK (Reuters) – Three men were arrested following reports of alleged homophobic chanting at the goalless draw between Liverpool and Chelsea at Anfield, Merseyside Police said on Tuesday. The men, aged 23, 37 …Read More »
  • U.S. Senate panel probes competition after Taylor Swift ticketing fiasco

    U.S. Senate panel probes competition after Taylor Swift ticketing fiasco

    Published by Reuters By Diane Bartz and Moira Warburton WASHINGTON (Reuters) -The U.S. Senate Judiciary Committee opened a hearing Tuesday on ticket industry competition issues after lawmakers raised concern about the disrupted sale of Taylor Swift …Read More »
  • Hundreds of UK cops faces been fired as part of clean-up for misconduct

    Hundreds of UK cops faces been fired as part of clean-up for misconduct

    Published by Wayarc Daily MET Police Chief Sir Mark Rowley last night admitted hundreds of officers from his own force should be “thrown out” for criminal and nefarious conduct. Sir Mark spoke of his “disgrace” after …Read More »
Previous Post: « Marriage at the Supreme Court 2.0 Analysis: The States’ Arguments Are Not About Gays
Next Post: News: Nepal, Xavier Dolan, NASA Messenger, Bianca Jagger, Apple »

Primary Sidebar

Adjacent News

  • DeSantis targets unions, school boards with ‘Teachers Bill of Rights’

    DeSantis targets unions, school boards with ‘Teachers Bill of Rights’

  • George Santos Proposed To Then-Teenage Boyfriend While Still Married To Wife, Shocking Report Claims

    George Santos Proposed To Then-Teenage Boyfriend While Still Married To Wife, Shocking Report Claims

  • The M&M’s controversy continues as company retires its “spokescandies”

    The M&M’s controversy continues as company retires its “spokescandies”

Good Trash: Going to Read It Somewhere, Y'know

  • Stormy Daniels Declares It’s ‘Exhausting’ To Always Be Asked About Alleged Affair With Donald Trump: ‘I Wish He Would Go Away’

    Stormy Daniels Declares It’s ‘Exhausting’ To Always Be Asked About Alleged Affair With Donald Trump: ‘I Wish He Would Go Away’

  • Sam Smith obsessed with McDonald’s

    Sam Smith obsessed with McDonald’s

  • Prince Andrew Makes Plans To Overturn Virginia Giuffre Settlement As Ghislaine Maxwell Claims Infamous Photo Is Photoshopped

    Prince Andrew Makes Plans To Overturn Virginia Giuffre Settlement As Ghislaine Maxwell Claims Infamous Photo Is Photoshopped

RSS Partner Links

  • People Believe What They Want
  • Tarek & Heather Rae El Moussa Reveal Release Date for New HGTV Show 'The Flipping El Moussas'
  • “Diane Kruger wore sheer pants for the Gucci jewelry event at PFW” links
  • Princess Kate & William arrived empty-handed to visit a Windsor food bank
  • ABC News foreign correspondent James Longman finally gets hands on his Emmy – many months after winning it!
  • Pamela Anderson Talked About Sly Stallone Trying To Buy Her Love, Her Marriage To Kid Rock, And Her “Romantic” Bond With Julian Assange
  • Hot Slut Of The Day!

Most Recent

  • Marjorie Taylor Greene: Antifa are ‘fascists’ because ‘they defend the drag queens targeting our children’

    Marjorie Taylor Greene: Antifa are ‘fascists’ because ‘they defend the drag queens targeting our children’

  • Guaranteed Stimulus Checks To Transgender: Checks Starting to Go Out This Month

    Guaranteed Stimulus Checks To Transgender: Checks Starting to Go Out This Month

  • Soccer-Three arrested for alleged homophobic chanting at Liverpool-Chelsea game

    Soccer-Three arrested for alleged homophobic chanting at Liverpool-Chelsea game

  • U.S. Senate panel probes competition after Taylor Swift ticketing fiasco

    U.S. Senate panel probes competition after Taylor Swift ticketing fiasco

  • Hundreds of UK cops faces been fired as part of clean-up for misconduct

    Hundreds of UK cops faces been fired as part of clean-up for misconduct

  • George Santos is living the GOP’s values | Opinion

    George Santos is living the GOP’s values | Opinion

  • Madonna Feels ‘Like The Luckiest Girl In The World’ As Fans ‘Shame’ Singer’s Pricey Tour Tickets: ‘Seriously?!’

    Madonna Feels ‘Like The Luckiest Girl In The World’ As Fans ‘Shame’ Singer’s Pricey Tour Tickets: ‘Seriously?!’

  • Tony Dungy Attends March For Life Rally – And Fans Call For His Firing

    Tony Dungy Attends March For Life Rally – And Fans Call For His Firing

Most Commented

Social

Twitter @tlrd | Facebook | Instagram @tlrd

Footer

Copyright © 2023 · Log in

×