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.