That’s the question I pose in my latest Forbes piece. Here’s a taste:
As any good lawyer knows, framing the question you ask a court is just as important — often more important — than providing a well‐argued answer that helps your client. Well, when the Supreme Court, as expected, decided to take up gay marriage, it unexpectedly reframed the “questions presented” in the four cases it took up and consolidated for argument. Instead of accepting any of the formulations presented in the four petitions for review, it asked the parties to brief these two questions:
- Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
- 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?
This was unusual; typically the justices simply decide whether to take a case based on the petitioners’ articulation. That’s why first‐year legal‐writing classes spend so much time working on those “questions presented.”
So what does this mean? UC‐Irvine law professor Rick Hasen found the first question “odd” because it focused on state powers and obligations rather than individual rights, which ”perhaps keeps the court from getting into questions about heightened scrutiny for sexual orientation discrimination.” Harvard law professor Larry Tribe suggested that the reframed questions “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.” (In my initial reaction to the cert grant, I speculated on the same compromise possibility but ultimately concluded that this was less likely than a clean win for the challengers on both questions.)