The Supreme Court is set to issue ruling soon on two of the biggest cases of the term. Both cases will have a significant impact on Ohio.
We decided to check in with our Supreme Court expert to get some predictions. Our expert is an attorney who has handled more than 100 appeals in state and federal courts. We have contacted him the past few years, and he tends to calm our worries.
In Obergefell v. Hodges, the Supreme Court is considering same-sex marriage. Our expert emphasizes that it is important to remember that Obergefell really is two cases, each needing a separate analysis:
“In the first part of the case, the Court will be considering whether states must recognize valid same sex marriages performed in other states. In other words, the Court is considering if a same sex couple living in Ohio gets married in California, where it is legal, must Ohio recognize that marriage?”
“I can almost guarantee that the Court will answer the first question, “yes.” Ohio recognizes marriages from every other state without looking at whether they would be legal in Ohio. This will for all practical purposes make same sex marriage legal nationwide, since any couple can get married in a state with legal same sex marriage and then force Ohio to give them all the rights and privileges of any other married couple.”
“I will even go out on a limb and predict that the vote on this first issue is 6-3, with Kennedy and Roberts joining the four liberals.”
“As for the second question, I am less optimistic than most. Counting votes, it looks like there are five Justice ready to find that the right to privacy encompasses the right to marry whoever one wishes. But something tells me that the Court, after answering “yes” to the first question, will look for a way to punt this issue. Perhaps the Court will decide that there is not sufficient standing or find some jurisdictional reason to not decide the case.”
We reminded him that after the previous Supreme Court decision on same sex marriage, he told us, “My read of the broad language from Kennedy in Windsor and the harsh dissent from Justice Scalia suggests that the Court would like to reach the merits of the issue of whether states can prohibit same sex marriage sooner rather than later.” He said:
“Yup. But I have changed my mind. The Court just feels more cautious these days. It would not surprise me to see Kennedy write his own opinion that nobody but perhaps the Chief Justice joins, leaving the Court with a 4-1-4 or 4-2-3 decision that has limited precedential value.”
Moving on. In King v. Burwell the Court is considering the availability of federal tax subsidies to individuals who purchase health insurance on an exchange operated by the federal government, like in Ohio. Our expert said:
“I find it hard to believe that the Court will rule against the Obama Administration here. First, this really is an exceedingly weak case that never should have made it to the Court. All of the evidence is that Congress intended to make subsidies available to all Americans, not just those who purchase insurance on state run, as opposed to federally run, exchanges. Second, Justice Roberts has indicated that he does not want the Court to be seen as politically motivated by invalidating part of Obamacare.”
However, he had a warning:
“There have been many times when I felt like I was confident in what the Court will do, and then I was surprised. Could the five conservatives on the Court throw the Republicans a bone here? I would not be shocked, although this feels unlikely given that the damage to the Court’s reputation would be significant, which is something the Chief Justice very much wants to avoid.”
So there you have some predictions. We will keep our fingers crossed for good outcomes.