My In-Depth Summary of Today's Arguments at the Supreme Court

Now that the arguments are over, here would be my personal "executive summary" of what we saw in the arguments in Obergefell v. Hodges, the SSM cases. Note that I haven't listened to the full arguments in-depth with a fine-toothed comb, so this may change mildly if something comes up that wasn't obvious at the beginning.The Conservative JusticesFirst, it's clear that Justices Alito, Scalia and Thomas, the traditionally-conservative justices, are votes against SSM. This was never in question, and it played out in the arguments. Justice Thomas almost never asks questions during arguments, but his previous statements and decisions have been very hostile toward our side. Justice Alito also showed strong predelictions toward the argument that if we legalize SSM, we also run the risk of legalizing polygamy, etc. So he's clearly not on the fence.Justice Scalia has also been very hostile, especially in his dissent in Windsor. What's interesting, though, is his questioning of the anti-SSM side on the second question, whether recognition of out-of-state marriages should be required. He was very adamant on getting an answer about why the Full Faith and Credit Clause wouldn't require such recognition. My opinion would be that he's hoping to eke out some win for the conservatives by voting for out-of-state recognition, in the hopes that he can stave off us winning on the bigger question, of a Constitutional right to SSM in all states.The Liberal JusticesOn the liberal side, it's been clear for quite a while that Justices Ginsburg, Breyer, Sotomayor and Kagan are for SSM nationwide. Ginsburg often "coached" the pro-SSM side with answers, and Kagan and Breyer interjected into a line of questioning by Scalia about whether ministers would be banned from refusing to officiate SSMs if there was a Constitutional right defined. Nothing surprising came up on the liberal side.Where We're At So FarSo we're starting off with a 4-3 score in our favor when you include the "essentially certain" Justices. Chief Justice Roberts was a bit of a mixed bag during the arguments, especially on the question of a Constitutional right to SSM. On the one hand, he indicated that he felt that same-sex couples were seeking to "redefine" marriage rather than join it. On the other hand, he drilled the anti-SSM side about whether a ban on SSM amounts to discrimination based on sex, which would fall under a higher level of scrutiny than simply rational-basis review. The impression that I get from the Chief Justice is that he probably will withhold his vote until he sees whether there is a solid majority of SSM votes on the Court, then will join based on which side he thinks he will have the most influence on when it comes to the opinions.The Kennedy QuestionAnd now we get to Justice Kennedy. All along it's been clear that he is the swing vote in this case, and he certainly earned this distinction in the arguments. At the beginning, during the pro-SSM side's arguments, he mused about whether the Court should go about changing an institution that's been defined a certain way for millenia. On the other hand, he made a very poignant comment about how the number of years between the end of segregation and the Loving case that legalized interracial marriage was the same as the number of years between Lawrence legalizing same-sex activity and the current case.Additionally, he seemingly tipped his hand (in my opinion) by returning to the dignity viewpoint that was key to his opinion in Windsor. He focused on how the institution of marriage is a way of dignifying the couple's love, as well as legitimizing the relationship that parents have with children. He was also hostile to the idea that marriage should be linked to procreation, noting that such an approach would conflict with many states' policies allowing for surrogacy or adoption for same-sex couples.Notably, he was very quiet during the second part of the arguments, which may be an indication that he believes that the first part (SSM nationwide) may be sufficient to resolve the case. Compared to his tough questioning of both sides in the first part, this can be seen (as many have) to indicate that he considered it a pointless line of inquiry, since he may have made up his mind on the first question, which is to require all states to allow SSM.Final SummarySo what does this all mean? In my opinion (and the opinion of many Supreme Court watchers), I would feel confident saying we'll at least get a 5-4 vote in favor of same-sex marriage as a Constitutional right, with Kennedy being the fifth vote. He initially seemed wary of establishing this as a right, but then broke out of this and found a number of ways to link this case with his opinion in Windsor.Could we get a 6-3 decision, with Roberts joining our side as well? It's a distinct possibility, especially if he sees himself as being the arbiter of the Roberts Court's history. If he does, though, it'll likely be to temper Kennedy's push toward the expansion of LGBT rights, by deciding the case on narrow grounds. It would still be a win for us, but it could cloud anti-discrimination laws in the future by sending an unclear message about what level of scrutiny to apply to those cases in the future.With the first question being decided, in my mind, in favor of SSM, I think the second question, recognition of out-of-state marriages, will become essentially moot. If all states have SSM, then it's only academic whether states are required to recognize marriages from other states.So all in all, I think we had a good argument today that will win out in the end. Kennedy wasn't as clear as many people would like with his questions, but I think his comparison with Loving, as well as his focus on dignity that was part of his Windsor opinion, will be what wins the day. We'll likely see a decision on the last day of the current Supreme Court session, meaning that it will be at the end of June on a date yet to be decided. There's a while to wait, but I think in the end it'll be worth the while.A Couple Useful LinksYou can see the liveblog that occurred during the arguments over at SCOTUSBlog. (One of my questions was even answered by the blogging team toward the middle of it! I'm jco22.)(Both links below start autoplaying audio, so be warned.)Audio of the oral arguments for Question 1 (Constitutional right to SSM).Audio of the oral arguments for Question 2 (Requiring recognition of out-of-state marriages)