by Michael Dorf
The Supreme Court cert grant in the SSM cases from the 6th Circuit included two rephrased questions presented: "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?"
An astute observer emailed me asking whether this is not a bit odd. After all, one might think that the answer to both questions is no, so long as the state doesn't license or recognize any marriages, same-sex or opposite-sex.
But in fact, the states all do license and recognize opposite-sex marriages, so the objection is academic. Moreover, under the Court's fundamental rights jurisprudence, states probably cannot simply deny marriage to everyone.
Accordingly, I don't read much significance into the Court's rephrasing of the cert questions. It seems to me that the Court rephrased in such a way as to make clear that in addressing both questions, lawyers are free to (and expected to) address both equal protection and substantive due process issues.