Early commentary on the arguments comes from ACSlaw, which has posts from Samuel A. Marcosson and Amy Bergquist. At The New York Times, Joseph Landau explores why Chief Justice Roberts might support same-sex marriage. At the New York University Law Review Online, Ryan H. Nelson discusses what he calls the “third nail” in the “proceed with caution” argument against same-sex marriage. Other early commentary comes from Ilya Shapiro at Cato at Liberty, Daniel Fisher at Forbes, Mark Joseph Stern at Slate, Ian Millhiser at ThinkProgress, German Lopez at Vox, and Garrett Epps at The Atlantic.The Ryan Nelson (.pdf) piece from above:
“We must proceed with caution” remains a clarion call of marriage equality opponents. Courts have previously rejected this argument on two grounds:More politics and policy below the fold.
First, states cannot save an otherwise unconstitutional law by raising the specter of theoretical harms that may run rampant if the law were struck down. And second, such harms are inapplicable in the context of same-sex marriage bans because there is no harm caused by allowing same-sex couples to wed. A number of jurists, most notably Justices Alito and Thomas, nonetheless embrace the “proceed with caution” argument.
To that end, this Essay explains a third reason why the “proceed with caution” argument should fail when the Supreme Court takes up the issue of marriage equality this spring; specifically, a state should not be allowed to proceed with caution unless it explains how it plans on doing so. The states defending their same- sex marriage bans before the Court this spring—Kentucky, Michigan, Ohio, and Tennessee—have failed to identify how they plan to proceed with caution. They offer no plans, timetables, or rubrics by which they intend on analyzing the effects of same-sex marriage elsewhere, extrapolating those effects to their states, and taking action as warranted. As these states have presented no such evidence, the Court should reject the “proceed with caution” argument they advance.