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Obergefell v. Hodges was a recent case in which the Supreme Court ruled that same-sex marriage was a constitutional right. The Court considered two 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?

The Court ruled 5-4 that the answer to both question is yes (a yes answer to the first question essentially makes the second question moot). Each of the four dissenting justices (Alito, Roberts, Scalia, and Thomas) wrote an opinion.

Is there any indication (for example, from their opinions) of how the dissenting justices would have voted on the second question?

  • I have read the dissents (well, I've read Roberts' and skimmed the others). I didn't see any explicit mention of the second question. But there are some things that could imply an answer. For example Scalia writes "...in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases." It's not clear to me whether "these cases" refers to both questions. – Julian Rosen Jun 29 '15 at 2:19
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    I think "these cases" refers to the fact that Obergefell was four separate cases that were combined by SCOTUS into one case. – cpast Jun 29 '15 at 2:27
  • Oh, right! Looking closer, some of the cases (e.g., Tanco v. Haslam) involved just question 2. So maybe this means Scalia is 'no' on question 2. Actually, since the dissenting opinions were called "dissenting" rather than "concurring in part and dissenting in part", does this mean all four dissents would vote 'no' on question 2? – Julian Rosen Jun 29 '15 at 14:52
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From Roberts' dissenting opinion:

Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.

(The Due Process Clause is not a guarantee of every right that should inhere in an ideal system.)

In my opinion, this quote speaks as much to the second question as the first. Assume (hypothetically) for a moment that question one was not at issue. If a state defined marriage as only between opposite sexes, and the right to make a state change its definition of marriage is not in the Supreme Court's purview (in our hypo), then the state is as free to reject the validity of marriages abhorrent to its laws, performed elsewhere, as it is to deny the right to marry under its theory of marriage.

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