Could There Be a Split Decision on Marriage?

When the Supreme Court grants cert in a case, they instruct the attorneys for both sides on what specific questions they are allowed to argue about. Those questions indicate which aspects of a case the court is willing to consider in hearing the appeal and limits what can be be said in the briefs and in oral argument. In the four marriage cases they just accepted, here are the two questions they presented:

1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

2) 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?

There are a couple interesting things here. First, it’s squarely about the 14th Amendment, specifically about the Equal Protection Clause. Second, it leaves open the hypothetical possibility of a split decision, where the court might rule that states do not have to issue licenses for same-sex marriages performed there but must recognize same-sex marriages legally performed in other states (though I note that the second question does not mention the Full Faith and Credit Clause at all. The first question subsumes the second, but not vice versa, leaving open at least some possibility that the court might answer yes to the second question but not the first.

How likely is that? I don’t think it’s likely at all. I think it’s more likely that Justice Kennedy would side with the conservatives on federalism grounds, ruling that the states have final authority on the matter, but I don’t think that’s likely either. Despite the fact that he gave a nod to federalism in Windsor, that case was specifically about federal law, not state law. But the logic and rhetoric of the ruling leads almost inexorably to the conclusion that banning gay couples from getting married violates the Equal Protection Clause.

DOMA, he argued, “impose[s] a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages” and that “interference with the equal dignity of same-sex marriages…was more than an incidental effect of the federal statute. It was its essence.” The goal of DOMA was to “impose inequality” and it “humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”

Clearly, Justice Kennedy has a strong personal attachment to this issue. He sees the refusal to recognize same-sex marriages as having the primary purpose of destroying the dignity of gay people, denigrating their families and humiliating their children. It’s hard for me to imagine that he could write such powerful words in one ruling and then allow that denigration and humiliation to continue on the grounds of federalist technicalities only three years later. I think we get a clear victory for equality.

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  • hunter

    Given that this is the court that ruled that legal constructs have the same rights as natural persons and that belief trumps fact, anything’s possible, but I keep remembering that Kennedy qualified his states’ rights language in Windsor by noting those state regulations had to conform to Constitutional requirements.

  • cptdoom

    I was wondering whether the questions were phrased in that manner so that a split decision in the other direction would be possible. That is, states are required, under the 14th Amendment, to issue marriage licenses to same-sex couples, but are free to refuse recognition to marriages that otherwise do not meet their state laws. For instance, a marriage between two first cousins might still be considered illegal, or states would be able to refuse to recognize polygamous marriages from other countries. That kind of split would make clear that sex and sexual orientation are not appropriate criteria for exclusion from the laws, but that states still have broad rights to define marriage.

  • Alverant

    Well the answer to the second question is obvious, since heterosexual weddings out of state are recognized even if they would be illegal due to “age of consent” laws there’s no reason to deny the same right to homosexual couples.

  • matty1

    @3 No reason? Have you not been paying attention. If gay marriage is legal Gawd will punish America by making it like Canada. Is that what you want?

    PS Modus this shit is hard, any tips?

  • Crimson Clupeidae

    matty1: try a laxative.

  • Tony! The Queer Shoop
  • gshelley

    Well, based on his dissent in DOMA, Scalia believes that Kennedy’s logic will force him to find the marriage bans unconstitutional. No doubt he will encourage Kennedy to stick with his own precedent.

  • Michael Heath

    Ed writes:

    It’s hard for me to imagine that he could write such powerful words in one ruling and then allow that denigration and humiliation to continue on the grounds of federalist technicalities only three years later. I think we get a clear victory for equality.

    I’m not sure how you of all people can not imagine a conservative behaving inconsistently on a matter of principle. You blog about such behavior all the time.

    I certainly hope J. Kennedy acts in a consistently principled manner and I wouldn’t be shocked if he did – or didn’t. I learned long ago to not depend on conservatives acting consistently on principles.

  • whheydt

    Re: Alverant @ #3…

    Are you sure that is true in all cases? Aren’t there some states that refuse to recognize some marriages–based on age of consent or degree of consanguinity–that couldn’t be entered into in their own state?

    If SCOTUS does a split decision requiring recognition of out of state same-sex marriages, but not requiring that all states license them, that will–effectively–kill all anti-SSM laws. The few remaining states that still have enforceable anti-SSM laws will just see any gays from that state wanting to marry do so on the other side of the state line. Indeed, one can imagine wedding chapels springing up just over the state line around each such state.

    Another take on these cases is on Slate, where it is suggested that SCOTUS will rule in favor of SSM simply to avoid opening a really big can of worms driven by tax law…for both gay couples and employers.

  • gshelley

    I don’t know the laws for age, but recognition of cousin marriages in states where they are not allowed varies. Some accept, some do not and others accept unless the people had gone out of state to avoid the State’s laws.

    I can’t see how a state that does recognise marriages that it would not allow to be performed can seriously argue that they can deny out of state same sex marriages.

    Then again, I can’t see how states that allow cousins to marry as long as they have proof they can’t have children can seriously argue that the purpose of marriage is for procreation, but they have done that

  • hunter

    A split decision as Ed describes it just leads to another 14th Amendment lawsuit — equal protection means equal protection, and if a state is recognizing out-of-state same-sex marriage but not recognizing the right of its own resident same-sex couples to marry, that’s sort of beyond ridiculous.

  • wilsim

    The Social Security Administration used the 14th ammendment against my then new wife and I to get reimbursed for 9 months of my wife’s SSI disability payments once they found out we were married in New York state.

    At home in Oregon, the SSA used my income to deny my wife her SSI benefits and medical coverage. They also sued us for overpayment on 9 months benefits, they cut her medical coverage and her monthly SSI payments.

    Depending on how this case shapes up at the Supreme Court – I may want to talk to a constitutional lawyer and see if I can sue the SSA for the backpay , get the overpay we paid to them returned, and medical bills reimbursed.

    I mean, that would be equal protection under the 14th. Because if it isn’t, then this is one place where same sex couples do actually have more rights – to not get sued by the SSA or government for an out of state marriage if one partner is disabled. ((No, I don’t really think this is special rights or in any way offsets the BS that same-sex couples have to deal with continually)).

    I am probably not articulating my point very well but I hope the message gets across.