Since the Supreme Court’s order Friday agreeing to hear four same-sex marriage cases, some professors and reporters have raised a troubling possibility: Could the Court have “stacked the deck” against full marriage equality by the way it phrased the “questions presented” by the cases? These are framed in terms of the states’ powers rather than of individual rights. These court watchers have suggested that they may point to a “compromise” that would mean less than full marriage equality—that is, a holding that states must recognize marriages performed by other states but may continue to refuse to marry same-sex coulples themselves.
Others, including Supreme Court go-to guy Michael Dorf of Cornell, suggest that the editing simply aligns the diverse cases and claims around a common set of issues. I incline to the Dorf view. The Court is, after all, combining four different lawsuits, each with its own parties and briefs, into one. But it’s worth thinking about how the change, if somehow deliberate, might play out in an opinion by, say, the Court’s bull elk, Justice Anthony Kennedy.
Here’s what the Court’s order asked:
- Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
- 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?
The case was brought by four different sets of plaintiffs; it challenges same-sex marriage bans in Kentucky, Michigan, Ohio, and Tennessee. The parties phrased their questions in terms of the Due Process and Equal Protection Clauses of the Fourteenth Amendment (Kentucky & Michigan); Due Process, Equal Protection, and the Full Faith and Credit Clause of Article of IV Section 1 (Ohio); and Due Process, Equal Protection, and the “fundamental right to interstate travel” (Tennessee).
So some cleaning up was necessary. Two of the cases involved already-married parties who want recognition of their out-of-state marriages (Ohio and Tennessee), while two involve parties who want to marry in their own states (Michigan and Kentucky). Thus, it was necessary to separate the “recognition” issue (must a state recognize out-of-state marriages and accord them marital benefits?) from the “celebration” issue (must a state allow same-sex couples to marry?). The Court’s phrasing, in fact, is not all that different from that of some of the petitions. And judicial rephrasing of questions presented, while not the norm, is far from unheard of in complex cases.
But an alert lawyer can certainly find some daylight—however small—between “recognition” and “celebration.” Steve Sanders of Indiana-Bloomington has highlighted this division (without advocating it), calling the recognition issue “the right to remain married.” In this scheme, same-sex marriages lawful under one state’s law would have to be valid under all others, even in states that don’t allow such marriages; but in-state couples in those states would have to go elsewhere to enter a valid marriage, because a state’s same-sex-marriage ban would remain valid.
Imagine for a moment, then, that this is a cunning land mine laid by conservative justices in the path of marriage equality. It might, at first glance, seem likely to appeal to Kennedy, who loves the majesty of the states as much as he loves his concepts of liberty and dignity. So imagine further that Kennedy sits down to write a “split-the-baby” opinion. Such an opinion could begin with “recognition.” This part writes itself, because Kennedy’s opinion in United States v. Windsor, the Defense of Marriage Act case, is emphatic about how awful it is when one sovereign (in that case, Uncle Sam) refuses to recognize a marriage deemed lawful by another (in that case, New York):
The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.
If that’s the law, who can invent a right of some states to impose stigma on legally married same-sex couples? Done and done. The justice continues on to “celebration.” This section begins with paeans to federalism, sovereign dignity, dignified sovereignty, the Framers, and the ballot initiative. It then suggests that, protected by these shields, no state must take a “sovereign act”—such as conducting a marriage—contrary to the will of its people. So far, so suitably abstract.
Thus, a state may be required by the Constitution to recognize marriages valid elsewhere but not be required to allow them on its soil. Its people in their wisdom can refuse celebration to the state’s own consenting, competent, adult committed same-sex couples because ...
Because what exactly? What is there about same-sex couples, resident in a state, that makes it permissible for their own state to refuse them equal dignity and status with other couples who crossed a state line to marry? Can a state impose “a disadvantage, a separate status, and so a stigma” on them and their children by refusing these families legal status equal to others—including other same-sex couples who are no different at all?
It can’t be simple dislike of homosexuals; that’s illegitimate “animus,” as defined by Kennedy in Romer v. Evans, the Colorado anti-gay initiative case. It can’t be disapproval of homosexual sex; Kennedy’s opinion in Lawrence v. Texas, by voiding Texas’s homosexual “sodomy” statute, has ruled that state interest “illegitimate.” It can’t be desire to favor “procreation”; the Windsor opinion notes that same-sex couples often form families with children, and then proclaims that the children of those unions are entitled to recognition of their parents’ union, and harmed when states withhold it.
Can it be the wonders of citizen lawmaking by initiative? Presumably not. In Romer, the Court struck down a ballot initiative as a violation of equal protection. Can it be “the will of the people”? That “interest,” in effect, is just a restatement of the others, because the people can’t constitutionally “will” any law that has no legitimate interest behind it. Can it be, as Judge Jeffrey Sutton argued in one of the opinions the Supreme Court will now review, that it would be better for gays and lesbians themselves to win at the ballot box instead of at the Court? That would be a perverse ruling indeed, holding that a group protesting against legal inequality is in fact so meritorious that they deserve the glory of marching across the finish line rather than vindicating their rights in court. Of course, the opinion could point out that same-sex couples can always take an out-of-state trip, marry there, and return home to full recognition. That almost sounds okay; but Southern states used to send black students out of state for graduate and professional schools. While sexual orientation isn’t the same as race, there’s still something seamy about endorsing that old “separate but equal” dodge.
As an appellate clerk I once was assigned an opinion in a jailhouse suicide lawsuit. Two police officers brought a man to the lockup and told the jailer, “he may kill himself.” The jailer paid no attention. With no suicide watch assigned, the inmate was able to hang himself with his own shoelaces.
To me, all three had shown what the law calls “deliberate indifference,” and thus should have paid damages to the widow. I wrote page after purple page justifying that result; but when I got the opinion back, the judge had left in the jailer but struck out the two officers. At the top of the page he wrote two words: “You tried.”
Kennedy may try. But I think that, like my jailhouse-suicide case, this opinion “won’t write.” It would, in fact, sound about as authentic as a late-night infomercial. Some justices (I name no names) seem to enjoy writing like patent-medicine pitchmen. But even those most critical of Kennedy must admit that his written opinions are achingly, crushingly sincere. He is never just President of Hair Club for Men; he is always a member too.
“Recognition” and “celebration” go together like a horse and carriage. I don’t see a way to split them that would allow the Court—or its key justice—to escape this term’s rendezvous with destiny.