But overruling the 6th Circuit on Question 2 (or sending it back for a review of whether the relevant jurisdictions have strongly held public policy concerns opposing same gender marriage).
Scalia and Alito were both very skeptical of the argument that states are not required to recognize marriages from other states. Shockingly so.
Deciding this way would create de facto marriage equality (as was done in Loving v. Virginia) without the court taking the step so offensive to Alito, Scalia, Roberts, Thomas, and to some extent Kennedy: That of having the Supreme Court impose marriage on the states.
Refusing to recognize a marriage performed in another state is rare enough to be almost unheard of. Once a state decides you are eligible to marry, every other state recognizes that marriage (even if the couple would not be eligible to marry in the home state - e.g. kinship, age, or the marriage occurs in a way not recognized by the home state - e.g. a common law marriage or one performed by an officiant not authorized by the home state). It only takes a rational basis for them to affirm the 6th Circuit. As much as I love the opinions saying there is not even a rational basis, I'm afraid that the weight of law is in favor of finding a rational basis.) On the other hand, to refuse to recognize a marriage performed in another jurisdiction requires a showing that it is "counter to its 'strongly held public policies'." That is a harder standard to meet - and Scalia, Alito, and Roberts seemed skeptical that it could be met. (And with ~60% of the country approving same gender marriage it would be pretty tough to establish.)
If they reverse on Question 2, couples would be free to hop across the border, marry, and return home and their marriages would have to be recognized by their home state. So even though Ohio now prohibits marriage, my marriage would still be recognized for all purposes because it was a legally recognized marriage when and where it was entered into. It would be inconvenient (as it was following Loving), but it would be a very short time before states stopped playing the charade of recognizing other, but not their own, same gender marriages.
It's a way to split the baby, and not disrupt the marriages already being recognized in 37 states (by judicial decree in many instances & I may have lost count by now).
I would not even be surprised to see 6-3 or better on question 2. I don't think they want to stick their fingers in the rational basis pie required for Question 1. At best, I think that one would go 5-4., and more likely 4-5.
= new reply since forum marked as read
