Could There Be a Split Decision on Marriage?

Could There Be a Split Decision on Marriage? January 23, 2015

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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