Obergefell v. Hodges

Obergefell v. Hodges is the name of the same-sex marriage case heard by SCOTUS today, April 28th, 2015.

On this, the day that the Supreme Court of the United States heard oral arguments about the “right” of Same-Sex Marriage, I thought two new thoughts.  But before I speak them, I want you, my reader, to be crystal clear where I stand.  One, I am 100% with the proponents of the right to same-sex marriage who want to be treated the same as traditional marriage couples in civil law, as it does no harm to anyone to allow them to share this “right” with opposite-sex couples.  And, two, this issue does not seek gay access to religious marriages; churches or congregations may continue to do as they want – let them marry gay couples or let them not marry gay couples – let them have their own internal struggles with this issue, and I am sure that many churches and surely many more congregations will fracture over this “right.”  So be it.  There you have it, FOR same-sex marriage in its CIVIL sense only, and FOR the freedom of religious institutions and religious practitioners to continue to discriminate (is this really a Christian thing to do?) against gays at the same time.  I am not threading the needle, I am NOT having it both ways, but no one is asking for private non-discrimination, only governmental non-discrimination.  If you, dear reader, think I am wrong, prove it; show me with a citation of a legal action to compel a church to officiate and/or to recognize a same-sex marriage.

Now for my two thoughts of today.

One:

It occurs to me that if the Court decides in favor of same-sex marriage, some states, a few states – their governors, their legislatures and their citizen-residents – may go completely bonkers.  Unlike 1957 – when President Eisenhower sent in federal troops to force Arkansas’s compliance with the Brown v Board of Education decision desegregating public schools – a) that decision was 9-0 while this one will be at best 6-3 and more likely 5-4, b) President Obama does not have the intestinal fortitude to enforce the Court’s decision against a state’s resistance, and c) he does not have the deep respect of the American people that President Eisenhower had that allowed him to act decisively in support of that Court decision.  President Eisenhower risked civil war but he had the support of the American people; Obama, without that level of popular support, may not prove up to the challenge (I may be proved wrong).

Two:

I can imagine Justice Anthony Kennedy (the “swing” Justice) pulling Chief Justice John Roberts aside and saying: “Chief, if you vote No, I will abstain.  It will be a 4-4-1 decision, a split decision, and we can wait for more states to come on board as will happen anyway.  Justice will take longer but we may avert a civil war.”

What do I think will happen?  I think that Chief Justice Roberts and Justice Kennedy (if not Joseph Alito) will both vote Yes, for a 6-3 (or 7-2) decision, and that my first thought will begin to unravel.  It will be an interesting summer.

Addendum: Friday, 06/26/2015
I was wrong on both counts (see "Two:" immediately above).  Better the Court had done as I had imagined than render another tepid 5-4 decision on an issue that so divides the nation (not by numbers, probably 70 - 30 by now, but by passion, especially among the religiously intolerant who only see their freedom to be holier than thou being abridged).  Anyone who sees this issue as a religious freedom issue has his head up his ass.

Something to think about.

For Supreme court arguments on gay marriage, annotated for non-lawyers.

P.S.  One of my blog's first posts, more than a year ago, discussed gay rights.

For a recent (September 2015) update to this post, see Gay Marriage, Updated.