Symposium:  Unveiling marriage equality?

David B. Cruz is a Professor of Law at the University of Southern California Gould School of Law.

On the eve of the Martin Luther King, Jr. Day weekend, the Supreme Court has granted review in all four cases from the Sixth Circuit where same-sex couples were denied the right to marry or to have their lawful marriages recognized.  Couples from Ohio, Tennessee, Michigan, and Kentucky have in a manner of speaking asked the Court, “will you marry us?”  (No invocation of polygamy intended, though we can probably expect some briefs filed opposing the couples to raise that issue.)  By granting their cert. petitions, after having denied review from other court of appeals decisions ruling in favor of marriage equality and having denied stays sought by losing states in various suits brought by same-sex couples, the Court has basically responded, “quite possibly.”  While an individual on bended knee would be quite disappointed not to receive an unequivocal “yes” in answer to a proposal, the norms for cert. petitions are markedly different from those for marriage proposals.  The Supreme Court only infrequently rules on the merits of cases summarily, without full briefing and oral argument.

But the Court indeed appears to be taking the question very seriously.  It consolidated the four cases for oral argument, allocating an hour and a half on the question whether under the Fourteenth Amendment states must let same-sex couples marry and an hour to the question whether under that amendment states must recognize lawful marriages of same-sex couples from other jurisdictions. Each of those issues was presented by some three of the four cert. petitions, so now the attorneys are going to have to hash out who gets to argue for how long.  The Court did not take up the question of state obligation to recognize a court-ordered adoption by same-sex couples in another state; presumably if states are constitutionally obligated to respect a same-sex couple’s marriage, they will cease such harmful treatment of families headed by same-sex couples (and if they don’t, you can bet there would be further litigation relying on a marriage equality decision from the Supreme Court).  Nor did the Court grant review of the doctrinally/precedentially problematic claim that a state impermissibly infringes upon same-sex couples’ fundamental right to interstate travel by refusing to recognize their lawful out-of-state marriages.  Instead, the constitutional claims at issue are whether the Equal Protection Clause protects same-sex couples’ right to marry and to have their marriages recognized where states let different-sex couples marry and accept such marriages from other jurisdictions, and whether the fundamental right to marry under the Due Process Clause extends to same-sex couples.

Since the questions to which the Court limited review speak more broadly of “the Fourteenth Amendment,” it would also be permissible for any of the same-sex couples to argue that the right to marry the person of one’s choice is a privilege or immunity of citizens of the United States.  Yet of the more “conservative” Justices who ruled in McDonald v. City of Chicago that the Fourteenth Amendment protected citizens’ (itself an odd limitation) right to keep and bear arms, only Justice Clarence Thomas embraced the Privileges or Immunities Clause, despite a significant body of constitutional scholarship suggesting that that clause was supposed to protect people’s fundamental rights.  Accordingly, it seems unlikely that the Court would ground a ruling in favor of marriage equality on the Privileges or Immunities Clause, so the real action will likely all be on the more prevalent equal protection and due process arguments.

And, while predictions are always risky, the couples appear likely to prevail on those claims.  As mentioned above, the Supreme Court let stand earlier marriage equality decisions from the Fourth, Seventh, Ninth, and Tenth Circuits and denied stay requests from Florida, for example.  If there had been a solid five votes on the Court to reject the constitutional arguments for marriage equality, such five Justices likely would have granted a stay of those rulings to preserve states’ prerogatives regarding marriage.  This suggests that Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito – all of whom voted to uphold the discriminatory Defense of Marriage Act in United States v. Windsor – did not think they could count on Justice Anthony Kennedy (or any of the four more “liberal” Justices) to vote against marriage equality.  Since the Court let untold numbers of same-sex couples marry in states across the country by rejecting many states’ cert. petitions and has now taken up four cases presenting the same issues, it would seem difficult from a fairness issue to let residents of Ohio, Tennessee, Michigan, and Kentucky enjoy less constitutional protection than residents of many other states.  It is unthinkable to me that the Court would now turn around and tell the people who married only after it cleared the way for them to do so that the Court was wrong to do that and their marriages were void.  I suppose the Court could say, okay, couples already married are protected but other couples in any state where marriage equality exists due to court decree would henceforth not be able to marry.  That was the inequitable situation in California after the state supreme court interpreted Proposition 8 to bar future marriages of same-sex couples but to leave untouched ones entered before the measure was approved by voters.  The U.S. Supreme Court’s standing ruling in Hollingsworth v. Perry in 2013 cleared the way for Judge Vaughn Walker’s ruling against Proposition 8 on constitutional grounds to take effect, so California’s problem was resolved.  Today, it is more than hard to imagine the Court ushering in such a regime on a grander scale.  Far more likely it is that the Court will issue a decision holding that the Constitution protects same-sex couples’ right to marry – probably by a five-to-four vote judging from the Justices’ positions in the Windsor decision (unless Chief Justice Roberts flip-flops and decides that although his Windsor dissent argued that state marriage exclusions were distinguishable from the federal law partially invalidated in Windsor, on reflection he’s concluded that’s wrong and so, accepting Windsor as precedent, the same-sex couples here win).

And this is as it should be.  As I have written before (including in the Encyclopedia of the American Constitution), the Constitution is best understood to condemn laws denying same-sex couples the right to marry or refusing to recognize our marriages as violative of the fundamental right to marry as well as violative of equal protection.  Regarding the right to marry, I have argued that “it is inappropriate to take enduring characteristics of a person claiming a right into account in defining the contours of that right.”  Thus, the right the Court has protected and the right at issue should both be understood simply as the right to marry, not the right to marry someone of the same (or different) sex; accordingly, laws excluding same-sex couples from marriage should be subject to strict scrutiny, which they undeniably fail. Viewed through the lens of equal protection, laws limiting civil marriage to male-female couples classify on the basis of sex and should therefore be subject to intermediate scrutiny.  They also discriminate on the basis of sexual orientation and as such should be subject to strict or at least intermediate scrutiny, which again they cannot survive – indeed, many courts have now concluded that these marriage exclusions cannot even satisfy rational basis review.  A Supreme Court opinion ruling in favor of marriage equality could embrace any or all of these lines of argument.  Or, the Court could engage in a less clause-bound form of analysis and consider the constitutional stakes more holistically and reason in terms of what scholars including Nan Hunter and Nancy Marcus have referred to as “equal liberty.”  Whichever route it took, a ruling by the Court in favor of the same-sex couples in these four cases would doom the marriage exclusions in the other eleven states still discriminating against same-sex couples, ushering in a new era of nationwide marriage equality.

This would be a great outcome for constitutional justice – as far as it goes. But it would seem especially inappropriate this close to MLK Day not to note that the Supreme Court has had a spotty record of late when it comes to equality.  Think, for example, of the Court’s recent decision in Shelby County v. Holder invalidating the coverage formula for the Voting Rights Act’s preclearance provisions or its upholding of Indiana’s unnecessary and onerous voter ID law in Crawford v. Marion County Election Board.  So, as the Supreme Court appears poised to unveil marriage equality for the entire country (though probably only at the very end of the Term, allowing same-sex couples few if any new opportunities for June weddings this year), it remains vitally important to remain or become committed to a broad and inclusive vision of equality and to do the hard work necessary – in legislatures, courtrooms, and communities – to make a more equal and just America more than merely a dream.