The Supreme Court’s decision to hear the gay marriage cases today came accompanied by some strange rephrasing of the questions presented:
The cases are consolidated and the petitions for writs of certiorari are granted limited to the following questions: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth 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? A total of ninety minutes is allotted for oral argument on Question 1. A total of one hour is allotted for oral argument on Question 2. The parties are limited to filing briefs on the merits and presenting oral argument on the questions presented in their respective petitions.
The first question presented is quite odd. Rather than ask about an equal right of gays and lesbians to marry same sex partners, it asks about the right of the states to deny same sex marriage licenses. This not only phrases it as an equal protection type claim, but of course leaves open the possibility that states could get out of the marriage business entirely. This perhaps takes away issues related to the due process rights of same sex couples, and perhaps keeps the court from getting into questions about heightened scrutiny for sexual orientation discrimination.
The framing of these questions apparently differ from the way the questions were presented in all of the petitions, which raises the question of why were they rewritten (with an accompanying direct order—I’ve not seen that before—admonishing the parties to stick with discussing these questions presented). This strikes me as the handiwork of the Chief Justice, perhaps looking for a way to have as narrow a win for same sex couples as it is possible to achieve. That is, if the Chief calculates that Kennedy and the liberals are going to reverse the Sixth Circuit no matter what, perhaps this is a way to have that majority write as narrow an opinion as possible, one that even the Chief could possibly join (hedging a bet against historical trends?).
This is of course speculation. Perhaps Justice Kennedy wanted the question framed in this odd way (though his earlier gay rights opinions do not suggest he would be averse to deciding the issue as to the rights of gay couples (and derivatively their children). But the delay in issuing today’s order, the deliberate reframing of the question, and the admonition to the parties to stick with the issues means something was afoot.
UPDATE: I’ve heard from a few people that the admonition related more to the fact that some of the petitions presented only one of these two issues, and the parties should each address only the one they’ve gone up on. That seems plausible.
[This post has been updated.]