The final battle for gay marriage in America begins
By S.M. | NEW YORK
TWO decades ago, hardly anyone imagined that gay couples could wed. This year, America's Supreme Court looks ever more likely to declare same-sex marriage to be a constitutional right. On January 16th the court agreed to consider this explosive question, and also the related one of whether states must recognise same-sex marriages performed in other states.
A Sixth Circuit Court decision upholding four state bans on gay nuptials in November is what nudged the justices to jump in. Four earlier circuit court decisions had gone the other way—knocking down gay marriage bans on the basis of US v Windsor, a 2013 case in which the Supremes invalidated the core of Bill Clinton's Defence of Marriage Act (DOMA), which barred the federal government from recognising gay wedlock. Judge Jeffrey Sutton’s ruling at the Sixth read Windsor differently and created a split that only the Supremes can resolve.
The petitioners in the four consolidated cases (Obergefell v Hodges, Tanco v Haslam, DeBoer v Snyder and Bourke v Beshear) are gay couples seeking to marry or wanting to have their out-of-state marriages recognised in Ohio, Tennessee, Michigan and Kentucky. The respondents are the governors (or, in Obergefell, the health director) of these states. The parties have until April 17th to file all their briefs. A two-and-a-half hour oral argument will then take place during the last week in April, giving the justices two months to deliberate and write their opinions. Along with King v Burwell,the case that could gut Obamacare, Obergefell (as the case will be known) will be one of two dramatic end-of-June rulings that could define the tenure of John Roberts as Chief Justice.
The split in the circuits reflects a division over how to apply the Windsor precedent. Windsor was decided 5-4, with Justice Anthony Kennedy writing the majority opinion and departing, as he often does in gay rights decisions, from the court’s conservative bloc.
In the past 18 months, dozens of district courts and the Fourth, Seventh, Ninth and Tenth Circuit Courts have drawn upon Windsor to find state bans on same-sex marriage unconstitutional. Some courts ruled that marriage is a fundamental right under the 14th Amendment’s due process clause. Some have determined that gays and lesbians are a “suspect class” worthy of extra judicial protection and that bans on their nuptials should be subjected to heightened scrutiny under the equal-protection clause. Others have ruled that since only “animus” motivates opposition to same-sex marriage, the bans do not even have a “rational basis”, the lowest level of scrutiny. The Sixth Circuit, however, contends that Windsor entails no such sweeping gay-rights victory.
The truth is, there is something in Windsor for everybody. The case for same-sex marriage relies on lines like this one from Justice Kennedy: DOMA “is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity." By treating gay marriages differently from heterosexual marriages, DOMA "demean[ed] the couple, whose moral and sexual choices the Constitution protects.” And there is this:
[DOMA] imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others.
Substitute “same-sex marriage ban” for “DOMA” and “federal officials” for “state officials” in these passages, and the logic seems to hold. Justice Antonin Scalia, who dissented vigorously from the Windsor holding, understood this well. It is “inevitable", he wrote in 2013, that viewing DOMA as “motivated by ‘bare...desire to harm’" gay couples will eventually lead the court “to reach the same conclusion with regard to state laws denying same-sex couples marital status". Justice Scalia didn’t stop there: “By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.” Well, yes.
But there is another dimension of Windsor that makes Obergefell less than an open-and-shut case. Alongside the paean to the liberty, dignity and equality in Justice Kennedy's majority opinion is a dash of deference to the states. There is a “long established precept", he wrote, that while “the incidents, benefits, and obligations of marriage are uniform for all married couples within each State...they may vary, subject to constitutional guarantees, from one State to the next.” In short, states should be able to set their own marriage laws. The crucial unresolved question, of course, is whether marriage for gays is a “constitutional guarantee” that would trump a state’s right to limit marriage to heterosexual couples. But as Austin Nimrocks points out in a post at SCOTUSblog, Justice Kennedy was recently on the record hailing the democratic process (rather than federal courtrooms) as the right venue for resolving deep cultural controversies. In Schuette v BAMN (which I covered here last April), he wrote:
Deliberative debate on sensitive issues such as racial preferences all too often may shade into rancour. But that does not justify removing certain court-determined issues from the voters’ reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate... It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.
If “voters are capable of deciding one of the most controversial issues in our country’s history—race relations,” Mr Nimrocks asks, “are we really to assume that the Supreme Court does not believe them to be capable of deciding questions about marriage on ‘decent and rational grounds’ ?” Mr Nimrocks may be reading too much into this passage in Schuette. But the big picture is right: Justice Kennedy, the man in the middle, will likely determine whether, come June, the Supreme Court will announce a federal right to same-sex marriage. The smart money says it will.
