My take on the oral arguments in the same-sex marriage cases before the Supreme Court
The two questions before the court were:
(a) whether same-sex couples must be permitted by the states to marry on the same terms as heterosexual couples as a matter of constitutional right; and
(b) if the Court decides against recognizing it as a Constitutional right, then are states that do not recognize same-sex marriage required, under the full faith and credit clause, to recognize those same-sex marriages performed in states that do allow them.
IT seems to me as if there are three possible configurations of rulings on the two questions. They are:
(1) On question (a) they could rule that same-sex marriage is not protected by the equal protection clause, and thus the question of whether same-sex marriages will be recognized will continue to be left up to the states; and on (b) they could rule that states are not required to recognize the same-sex marriages legally performed in other states; or
(2) On question (a) they could rule that the equal protection clause does indeed mean that same-sex couples must be permitted to marry on the same basis as heterosexual couples. In this case, question (b) becomes moot, and the Court doesn't have to address it; or
(3) On question (a) they could rule against a constitutional right to same-sex marriage, and on question (b) rule that even though the question will still be left to the states regarding whether to permit same-sex marriages within its borders, that states must still be required to recognize the marriages validly performed in other states.
Question (a) is too hard to call based solely on the oral arguments, so that could go either way (most likely depending upon where Justice Kennedy falls). But from what I heard during the argument for question (b) even the conservative justices were having a hard time finding any coherent basis for ruling that states should not have to recognize the public acts (including same-sex marriage) of another state. So, if I am right about this, scenario (1) is not really a possibility.
I think the conservatives on the court will tend to want to split the baby and go with scenario (3). But if they think about the practical ramifications of that, at least some of them (such as Kennedy and maybe even Roberts), will have to take a step back. The reason is that scenario (3) will create an absurd legal reality, whereby same-sex couples in states that do not allow them to marry will simply get married in states that do, and their home states will be required to recognize their marriages in any case. So IF even one of the conservatives actually applies a bit of rationality to the situation, the only coherent option is scenario (2). But that's a big 'IF'.
At one point, I found myself so angry I was sputtering. It was when Scalia started saying that a constitutional right to same-sex marriage could require Christian clergy to perform same-sex weddings. It's a bogus argument, and Scalia knows damned well it's bogus, the reason being that clergy are not required to perform ANY WEDDING AT ALL, gay or straight. As a matter of the establishment clause, they cannot be required to perform weddings they do not wish to perform. And nothing would change in that regard by extending the right to marry to same-sex couples. It was such an outrageously dishonest position!