"in how it has framed the question?" asks Richard Hansen, a law professor at the University of California, Irvine.
WASHINGTON — The first page of a petition seeking Supreme Court review is the most important. It sets out the “question presented,” the one the court will answer if it takes the case.
The justices do not ordinarily tinker with the wording of those questions. But on Friday something unusual happened: In agreeing to hear four same-sex marriage cases, the court framed for itself the issues it would address.
The court’s order was not issued until 3:30 in the afternoon, long after the justices’ private morning conference concluded. That suggested the drafting had taken some time and had involved some negotiation.
“The court’s order represents 'good housekeeping',” said Laurence H. Tribe, a law professor at Harvard.
But Professor Tribe also voiced a small note of caution.
“The rephrased questions,” he said, “technically leave open a middle path along which the court would prevent states from discriminating against same-sex couples lawfully married in their home states without requiring any state to take the affirmative step of issuing its own marriage licenses to same-sex couples.”
Some were puzzled by the court’s language in the new questions. They invoked, as the petitions had, the 14th Amendment to the Constitution, which guarantees due process and equal protection. But some saw a subtle shift of emphasis, away from the rights of people seeking to get married and toward the obligations the amendment imposes on states.
The court’s first question: “Does the 14th Amendment require a state to license a marriage between two people of the same sex?” The second: “Does the 14th Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?”
Michael C. Dorf, a law professor at Cornell, said the wording at first blush was “a bit odd.”
“After all,” he wrote in a blog post
, “one might think that the answer to both questions is no, so long as the state doesn’t license or recognize any
marriages, same-sex or opposite-sex.
“But in fact, the states all do license and recognize opposite-sex marriages, so the objection is academic,” he added. “Moreover, under the court’s fundamental rights jurisprudence, states probably cannot simply deny marriage to everyone.”...
A decision resolving the questions the Supreme Court presented itself with on Friday is expected by the end of June.
I've never been an early champagne-cork popper
(Don't take anything for granted. #EqualOpportunitiesNotSpecialEntitlements)