Why Tossing Out Same Sex Marriage Bans
Isn't a Slam Dunk
The Supreme Court today will be hearing oral arguments addressing the constitutionality of laws that define marriage so as to include only male-female pairings. The expectation is that these laws will be found unconstitutional. I don't see a victory for gay rights as quite the slam dunk that many observers are predicting. More about this later; for the moment more about the cases and issues.
The same sex marriage case, Obergefell v. Hodges, is not just one case but a consolidated group of cases involving sixteen couples in four states: Ohio, Tennessee, Kentucky and Michigan, the four states that make up the 6th Circuit. Of the five federal Courts of Appeals that have spoken to date, the 6th Circuit is the only one that has found laws limiting marriage to heterosexual couples constitutional. These cases are commonly seen as raising the question whether states can deny same sex couples the right to marry, but only three of the sixteen disputes the Court is being asked to resolve turn on this issue. The other cases, including the title case, involve a related matter: whether a state can refuse to recognize the marriage of a same sex couple legally married in another state.
James Obergefell and his partner of two decades, John Arthur, were Ohio residents when, in 2011, Arthur was diagnosed with Lou Gehrig's disease. Obergefell cared for Arthur throughout his illness and as Arthur's death approached, the couple determined to be married. Since they could not marry in Ohio, they raised $13,000 to rent a plane equipped to meet Arthur's health needs, flew to Maryland — a state that allows same sex marriage — were married on the tarmac, and within about 15 minutes were back in the air returning to Ohio. When Arthur died a few months later, Obergefell sought to be listed on Arthur's death certificate as a surviving spouse. Due to Ohio law and a voter-passed constitutional amendment precluding not just same sex marriages, but also the recognition of such marriages by Ohio officials, the request was denied. Obergefell sought and was granted a District Court order requiring Ohio authorities to recognize him as a surviving spouse. Ohio appealed the order, and a panel of the 6th Circuit by a 2-1 vote sided with the state. Obergefell then sought review in the Supreme Court.
Another of the Ohio cases raised similar death certificate issues, while the four other companion cases grew out of parenting claims made by couples who had been legally married in states other than Ohio. In three of these cases, a woman in a same-sex relationship had borne a child conceived by artificial insemination, and the woman's partner by marriage sought to be listed as parent on the child's birth certificate. Had the marriage partner been a man, listing would have been routine even in the absence of a genetic relationship to the newborn, but Ohio refused to acknowledge these partners as parents because it did not recognize the validity of their out-of-state marriages. In the fourth case, a same sex couple, legally married and living in New York, adopted a baby born in Ohio and sought to have the baby's birth certificate recognize them each as adoptive parents. Ohio routinely granted similar requests by heterosexual spouses but it denied this request even though the couple legally married and living in New York, and in New York each individual was recognized as parents by adoption.
Other recognition cases highlight more diffuse harms that can arise when a couple legally married in one state moves to a state where same sex marriages are not recognized. A Tennessee couple, for example, had to pay for two separate health insurance policies because the state university where they worked could not treat them as a family unit. Other petitioners called attention to different harms that the inability to marry or state non-recognition policies might cause. Examples include denied estate tax exemptions, hospital visitation limitations when a partner or the child of the recognized parental partner was ill, and the confusion, shame and stigma that jointly raised children may feel. The death of a partner could be particularly costly. If the deceased spouse dies intestate, the surviving partner will not inherit; death benefits that like Worker's Compensation go automatically to surviving spouses will be denied, and if the deceased is a child's sole recognized parent, the child may be removed from the only home she has known and the from the care of a person who has raised and loved her from babyhood.
Only three cases, one in Michigan and two in Kentucky (one involving a couple sharing the last name "Love") involve partners who seek to marry in the state where they live but cannot because the state allows only heterosexual marriage. These are the most fundamentally important cases. If they are decided in favor of the couples, then the unconstitutionality of refusing to recognize legal out-of-state marriages will follow a fortiori. The reverse is not true. The Court could hold that states must recognize the validity of same sex marriages that were legal where celebrated without invalidating laws that make same sex marriages illegal in their states. Few expect this to happen.
Although the issues are closely linked and many arguments are shared, the recognition cases are stronger than the right to marry cases because some arguments apply only in the recognition context. An obvious argument draws on Article IV Section 1 of the Constitution, which provides in part, "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." The petitioners do not, however, directly invoke it, though some amici give it more attention, and the petitioners make related policy arguments when they discuss the uncertainties and other difficulties that arise when a couple's marital status changes as they move from place to place. The Full Faith and Credit Clause is a thin reed to rely on because although it is likely to be rigorously applied when the issue is whether one state must honor the procedurally proper decisions of another state's courts, it seldom requires a state to substitute another state's laws for its own. The situation is arguably a bit murkier when a state is not asked to adopt another state's laws or legal policies but rather to accept a status created in another state through the operation of its laws rather than by legal judgment. States have, however, leeway to refuse recognition to statuses that run counter to their own strong policies. Marriage is one realm where leeway has been allowed. If, for example, a 25-year-old man who married a 14-year-old girl in a state where such marriages were legal then moved with his wife to a state where children under 16 could not marry, not only could the second state refuse to treat the couple as married, but if it charged the man with statutory rape, he could not interpose his originally legal marriage as a defense.
Still the Full Faith and Credit Clause, coupled with state practice, might have something to offer the recognition case petitioners. The extent to which states may deny recognition to statuses created elsewhere is unclear as is the strength of the policy interests needed to justify non-recognition. It is clear that states have been willing to treat some out-of-state marriages as valid, even knowing they would have been barred domestically. States that bar first cousin marriage have nevertheless accepted as wed first cousins who married in states where their wedding was legal, and at a time when miscegenation laws were common, some states that forbad interracial marriages recognized the married status of interracial couples who had wed in states where their racial differences posed no bar. The four states in the 6th Circuit have long been among the "celebration states." That is, they have regarded marriages valid where contracted as valid within their jurisdictions. To change this long-standing approach without adequate justification – without showing, for example, that the policy reasons that counsel against same sex marriage are more powerful than those that motivate judgments about the minimum age needed to marry or degrees of allowed consanguinity – opens a state up to the suspicion, if not the charge, that it is animus toward gays and the idea of gay marriage that motivates its non-recognition policy rather than some legitimate state interest. This matters because in invalidating Section 3 of the Defense of Marriage Act (DOMA), Justice Kennedy, writing for the majority in United States v. Windsor, made much of his sense that a desire to stigmatize or otherwise injure gay couples, motivated the statute.
The petitioners in the recognition cases rely more on the right to travel and the argument that marriage is a fundamental right, than they do on arguments related to the values that full faith and credit promote. Neither of the right to travel nor the fight to marry is found in the language of the Constitution, but each has been consistently recognized in Supreme Court jurisprudence. The right to travel claim focuses on the harms that a same sex couple might expect to suffer if they move from a state where same sex marriage is legal to a state where their marriage will not be recognized. These harms constitute a burden not faced by heterosexual couples, and a natural consequence is to discourage moves that a couple is entitled to make. The fundamental rights argument, which is also made by those denied marriage licenses, ties into equal protection and due process claims and, in particular, to the claim that the petitioners are being discriminated against and denied a fundamental right because of their gender identities. The unique issue here is that past cases involving gender discrimination involve discrimination allegedly due to a person's own gender. Here the claim is that it is the gender identities of two people, taken together, that trigger unconstitutional discrimination. If the petitioners can persuade the Court that the disadvantages they face are a form of gender discrimination, their chance of prevailing increases because the states' actions will face a higher level of scrutiny.
The marriage license petitioners and the states characterize what is at stake differently. The states argue that these petitioners are seeking a new right, a right to same sex marriage, and that this right is neither found in the Constitution nor hinted at in any Supreme Court decision. The petitioners argue that they are seeking not a right to same sex marriage but simply the right to marry. The latter right is recognized as fundamental in a number of Supreme Court cases, beginning with Loving v. Virginia, the case that overturned Virginia's ban on interracial marriages. Loving did not create a right to interracial marriage, the petitioners would argue, but instead held that a state could not deny two people the right to marry because they are of different races. The petitioners' core argument is that the same 14th Amendment rights to due process and equal protection of the laws that sinceLoving have precluded states from denying marriage licenses to two people of different races, today precludes states from denying marriage licenses to two people of the same gender.
A key issue in 14th Amendment jurisprudence is the level of scrutiny that a state statute should receive. Ordinarily the constitutionality of statutes is decided by the rational basis test. If a legislature has a rational basis for distinctions it makes, the legislation will be upheld, and almost always courts defer to legislative judgments about whether the distinctions it makes are reasonable ways to advance permissible goals. At the other extreme is strict scrutiny, the level of scrutiny applied to laws that treat people differently based on their race. It has been said that the scrutiny is strict in theory but fatal (to the legislative judgment) in fact. Although this is not quite true, it conveys the difficulty states face when a court applies strict scrutiny to legislation. In between rational basis and strict scrutiny is intermediate or heightened scrutiny, which is applied when distinctions are based on characteristics like gender or illegitimacy. Although in its three most recent decisions involving gay rights, the Supreme Court, speaking each time through Justice Kennedy, overturned laws disadvantaging gays in no case has Justice Kennedy said what level of scrutiny such laws should receive. The United States, in an amicus brief in Obergefell argues that the laws in question should be subject to heightened scrutiny. Should they be, they will almost certainly be struck down.
The petitioners share the federal government's belief that that the laws they protest should be subject to heightened, if not strict, scrutiny, but they also argue that the laws do not even leap the low rational basis hurdle. Their position is reasonable. The states attempt mainly to justify their definitions of marriage by pointing to the benefits that laws providing for heterosexual marriage bring. Thus, Michigan in seeking to justify its refusal to allow two women to wed writes:
Courts have never questioned the legitimacy of a state's interest in promoting procreation and ensuring that children are raised in a stable family that enhances the likelihood of success and minimizes the possibility that government will have to step in and provide care….Michigan's recognition of marriage and provision of benefits to married couples reasonably promotes that interest. ... [M]arriage "is a commitment like no other in society."
The petitioners do not dispute this because the issue is not whether it is rational to allow heterosexual couples to marry but rather whether it is rational to prevent same sex couples from marrying. One argument made not just by Michigan but by several other states is particularly puzzling; namely, that one reason to confine marriage to heterosexual couples is to preserve the stability of families in the interest of the children they raise. Yet most of the petitioners in these cases are raising children, as are an estimated 125,000 other same sex couples. If marriage contributes to relationship stability, and if stability is important to the well-being of children, allowing same sex couples to marry would appear to be a desired course of action.
The key to this puzzle is that the states appear honestly to believe that allowing same sex marriage will undercut the institution of marriage and in doing so erode the stability of heterosexual marriage. But this is a faith-based and not an empirical argument. There is no science-based reason to believe that allowing same sex marriage will undermine heterosexual marriage or make heterosexual marriages more prone to dissolution, although one amicus brief presents some crude empiricism designed to bolster the claim.
Michigan sought also to justify its marriage recognition rules by arguing that children raised by same sex couples fared less well than children reared in traditional families, while the petitioners argued that the parental couple's gender had little if any bearing on the fate of the children they raised. This question was litigated at trial, and both sides presented expert testimony on the issue. The trial judge found that the state's experts lacked credibility and their testimony should be disregarded, while the petitioner's evidence was scientifically sound and supported the petitioner's claims.
Other arguments made to justify limiting marriage to heterosexual couples seem similarly lacking in punch. One claim, that the marital institution is uniquely concerned with providing the conditions needed to propagate the next generation, ignores the fact that there is no fecundity test for entrance into marriage and even heterosexuals who are well past child-bearing age can marry. Other arguments read as if only women married to men can have children, ignoring not only state laws that treat adopted children on a par with born children, but also the fact that a number of the petitioning couples had children born to one of them.
As I said at the outset, most observers think the verdict in these cases is a foregone conclusion: laws precluding same sex marriage will be overturned. Some simply count judicial noses. Justice Kennedy, although usually a conservative jurisprudent, has been the Court's leader in supporting gay rights, and his four more liberal colleagues have consistently voted with him. Four votes plus one equals five, equals a majority – nothing more need be said. Others see a petitioner's victory implicit in Windsor, the court's most recent precedent. Justice Scalia, dissenting, saw that case as effectively deciding the same sex marriage issue. In a portion of his dissent that one can only admire for its cleverness, he shows how Kennedy could write an opinion invalidating all same sex marriage restrictions by substituting "this state's laws" for "DOMA" in paragraphs written for Windsor. The lower courts agree with Scalia's prognostication. The 6th Circuit is the only one of the five Circuit Courts of Appeal that have decided same sex marriage cases to decide against those challenging same sex marriage restrictions, and most District Courts hearing same sex marriage cases have come out the same way.
If I had to bet on the outcome in Obergefell, I would go along with the consensus that anticipates the legal demise of all same sex marriage bars, but I am less certain than many. Windsor, which invalidated DOMA's Section 3, rested on two pillars. One is the degradation of gay relationships implicit in DOMA—degradation so extreme that in Kennedy's eyes it necessarily reflected an intent to injure, born of animus, although not necessarily conscious prejudice, toward gayness and gay couples. The other was state's rights, another matter dear to Kennedy's constitutional heart. Not only was the Congress, in Kennedy's eyes, seeking to injure gay people with the passage of DOMA, but it was also taking from states their traditional right to define marriage for their own purposes and for federal purposes as well. In Obergefell, unlike Windsor, these concerns cut in different directions. To decide for Obergefell and the other petitioners Kennedy will have to walk back some of what he said in Windsor about respecting states as definers of marriage. The petitioner states have emphasized the state's rights aspect of Windsor in their briefs, some going so far as to suggest that this is what Windsor was mainly about.
The conflicting implications of Windsor's two pillars might lead Kennedy to find a compromise attractive. An obvious compromise is to allow states to define the requisites for marriages conducted within their borders but to require them to recognize as valid same sex marriages performed in states where they are legal. This would require of the states no more than what is required of the federal government in Windsor. It would also require overturning Section 2 of DOMA, which allows states to refuse to recognize legally contracted same sex marriages, but that should not be an issue. Although same sex couples might still complain of dignitary harm attendant upon living in states with laws denying them the right to marry, they could marry elsewhere, knowing they would thereafter be treated as married in the state of their residence. Hold-out states, seeing their policies stymied and aware of trends in public opinion, might soon give up on defining marriage in ways that moved lucrative wedding business elsewhere
Richard O. Lempert, a nonresident senior fellow in governance studies at the Brookings Institution, is the University of Michigan's Eric Stein Distinguished University Professor of Law and Sociology emeritus. This piece originally appeared on the Brookings Institution's FixGov blog.