Antonin Scalia and John Roberts actually had tough questions for gay marriage opponents

Supreme court justices john roberts antonin scaliaPhoto by Chip Somodevilla/Getty ImagesAntonin Scalia and John Roberts

The Supreme Court is hearing a huge fight over gay marriage on Tuesday, and two of the court’s most conservative justices had some tough questions for opponents of same-sex marriage.

During arguments over same-sex marriage bans in four states, Chief Justice John Roberts had an interesting hypothetical question for lawyers arguing for those bans. Here’s how the Wall Street Journal summarized that question:

Sue loves Joe and Tom also loves Joe, but Sue can marry Joe, while Tom can’t, he said. “Why isn’t that a straightforward case of sexual discrimination?” he asked.

The arguments on Tuesday focus on two key questions: 1) Does the Fourteenth Amendment require a state to licence a marriage between two people of the same sex?

2) Does the Fourteenth Amendment require a state to recognise a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state?

It’s possible the high court could hand down a compromise ruling answering “no” to the first question but “yes” to the second. That ruling wouldn’t require states to grant their own gay marriages but would force them to recognise those granted to other states.

In his own question for the states, Justice Antonin Scalia asked a question that hinted maybe the answer to that second question should be “yes.”

“A little surprisingly, Justice Scalia asked tough questions of the State,” Kevin Russell wrote for ScotusBlog. “He wanted to know why the text of the Full Faith and Credit provision did not extend to marriages.”

That provision of the Constitution requires states to respect “the public acts, records, and judicial proceedings of every other state.”

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