[Lurking Libertarian]

In deciding to review the four cases, the Supreme Court limited itself to two questions: 1) Does the 14th Amendment require a state to license a marriage between two people of the same sex? 2) Does the 14th 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? Using the reasoning I suggest, Kennedy could quite cogently answer no to the first question and yes to the second.

Months ago, on one of these threads, I predicted that the Court would do exactly that-- hold that the Constitution does not require states to license or perform same-sex marriages, but does require states to recognize same-sex marriages performed in other states. I also predicted that each of those holdings would be by a vote of 5-4: the majority for the holding that there is no requirement to perform gay marriages would be Roberts, Kennedy, Scalia, Alito and Thomas, and the majority for the holding that states must recognize other states' gay marriages would be Kennedy, Breyer, Ginsburg, Sotomayor and Kagan.

I'm still holding to that prediction. The headlines will say "SCOTUS Finds No Constitutional Right to Gay Marriage," but the practical effect will be to impose gay marriage in all 50 states, because gays will merely travel to another state, get married and return home.

[BuckeyeTexan]

Very interesting.

So how would same-sex divorce work? If Texas has to recognize a New York same-sex marriage, but Texas doesn’t issue licenses for same-sex marriages, do the New Yorkers have to file for divorce in New York to get it recognized in Texas?