The Court’s Options on Marriage Equality


My wonderful colleague and partner in crime, Prof. Catherine Smith, and I, presenting a talk on marriage equality at DU Law.

It is anticipated that the United States Supreme Court will issue decisions in the marriage equality cases sometime in late June.  Accordingly, I want to re-visit the question of what doctrinal options the Court has available to it in deciding these cases.

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For the time being, I am putting aside the question of how the Court will decide United States v. Windsor, the challenge to the federal Defense of Marriage Act (DOMA).  (The SCOTUSblog case page for Windsor can be found here.)

This is because I predict that the Court will decide Windsor on narrow grounds applicable only to DOMA, and therefore the decision will not provide guidance regarding the constitutionality of state-law marriage regimes.  DOMA presents an issue fundamentally different than any of the other marriage equality cases: whether the federal government has any interest at all in regulating the definition of marriage—an area that is historically the exclusive province of the state.

This is a very difficult argument for the group of congress members defending the law (the Bipartisan Legal Advisory Group, or BLAG) to overcome.  At oral argument, counsel for BLAG contended that DOMA created “uniformity” in federal recognition of marriage, but everyone knows that DOMA has in fact created vast inconsistency (variable recognition of marriages that are valid under state law) where there was once consistency (uniform recognition of marriages that are valid under state law).  BLAG’s argument that DOMA serves a legitimate federal interest in uniformity seems destined to fail.

In addition, BLAG has an embarrassing problem with the legislative record in DOMA.  Specifically, the House Report stated that, in enacting DOMA, “Congress decided to reflect [and] honor [a] collective moral judgment and to express moral disapproval of homosexuality.”

There are two, unavoidable constitutional problems with that emerge from this statement.  First, the Court has previously held that, as a general proposition, congressional hostility toward a particular social group is not a permissible basis for legislation (see Moreno v. Department of Agriculture).  Second, in 2003-seven seven years after DOMA was passed—the Court specifically held that moral disapproval of homosexuality was not a permissible basis for the public laws (see Lawrence v. Texas).

If Congress meant what it said, then DOMA is patently unconstitutional in the face of the Court’s own precedent.

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The case that will have larger implications for the marriage equality battle with be Hollingsworth v. Perry, the challenge to California’s Proposition 8.  This is because the Prop 8 case places squarely before the Court the question of whether states may exclude same-sex couple from the institution of marriage.  Following are some of the options before the Court, and how those options may affect marriage equality litigation in other states.

Potential Supreme Court Holding  Effect on Other States
Bans against same-sex marriage are always unconstitutional.This holding is unlikely because: (1) it is unnecessarily broad (as a matter of separation of powers, the Court is obligated to decide cases on the narrowest grounds available) and (2) it would unnecessarily interfere with the evolving democratic process that is moving toward recognizing marriage equality. The legal effect would be that all states would have to permit same-sex couples equal access to existing civil marriage.In terms of political effect, by short-circuiting an evolving democratic dialogue, there is great risk for popular backlash against the decision.
It is unconstitutional to have no relationship recognition, but comprehensive civil unions are an adequate remedy.This holding is unlikely because it would invite lengthy battles over which alternative means of relationship recognition are sufficiently comprehensive.  Also, it is patently a form of “separate but equal” segregation. States without existing comprehensive civil unions/domestic partnership regimes would be required to develop such mechanisms . . . “with all deliberate speed.”  (This language is a reference to the Court’s decision in Brown v. Bard of Education, a case where, among other things, the Court took on the role of mandating legislative action—an arrangement that was famously flawed.)
Bans against same-sex marriage are unconstitutional because they punish children for the conduct of their parents.  The idea here is that the children of same-sex couples are similarly situated to the children of opposite sex couples, yet when a state denies same-sex parents the right to marry, it is in effect punishing the children of those couples based on moral disapproval of the parents’ sexual orientation.  This possibility is intriguing because it rests on well-settled, but largely ignored, equal protection precedent, and perhaps provides a more sympathetic/politically viable basis for decision. Such a holding might be limited in effect to those states where adoption by same-sex couples is allowed; other states that do not permit adoption might be off the hook.
Bans against same-sex marriage are unconstitutional where there is evidence of anti-gay bias surrounding enactment of the law. While this could ultimately determine the outcome in all states, such a holding would still require fact-specific, case-by-case litigation presenting evidence of anti-gay animus.
Bans against same-sex marriage are unconstitutional where a state provides all other incidents of marriage, but withholds the term “marriage” from same-sex unions.  This is because granting all the substantive rights demonstrates that same-sex couples are similarly situated to opposite-sex couples, and the goal is simply to deny the symbolic prestige of the marriage designation to same-sex couples.  While this logic seems counterintuitive, it is a reasonable interpretation of the Ninth Circuit’s holding in the case and was discussed as a possibility at oral argument.  The Justices also acknowledged, however, that such an outcome would be perverse. A holding along these lines would only affect states with comprehensive civil unions in place, and other states would be dis-incentivized from enacting comprehensive civil union laws, because this would in effect require full marriage equality.

If I had to guess, I think the Court will go the animus route, which has the advantage of (1) allowing the Court to reach a principled decision while (2) leaving open (for now) the question of how marriage equality is properly resolved in the various states.  The disadvantage of this route is that the Court is not altogether certain what exactly animus is, as I have documented extensively elsewhere.

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