Today SCOTUS will hear arguments on Obergefell v. Hodges (the marriage case from Ohio) which has been consolidated with three other cases: Tanco v. Haslam (Tennessee), DeBoer v. Snyder (Michigan), and Bourke v. Beshear (Kentucky). In all four cases the Sixth Circuit Court of Appeals held that the state marriage laws were constitutional, reversing lower federal district court rulings that had overturned those laws. (The Sixth Circuit’s ruling can be read here).
The Sixth Circuit split from rulings made by the Fourth, Seventh, Ninth, and Tenth Circuit Courts declaring state marriage laws under their jurisdiction to be unconstitutional. Needless to say, the Sixth Circuit decision will now be reviewed by SCOTUS.
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?
Because these cases are about the Fourteenth Amendment and a state’s right to make its own marriage laws, it is ironic that states’ rights were key to the Windsor decision overturning DOMA. Gene Schaerr and Ryan Anderson point out in their Memo to Supreme Court: State Marriage Laws Are Constitutional (numbers are reference citations found at the link):
Kennedy’s opinion for the Court hinged on the reality that “[t]he significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning.” “The definition of marriage,” Windsor explained, is “the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the ‘[p]rotection of offspring, property interests, and the enforcement of marital responsibilities.’”
United States District Judge Juan Pérez-Giménez recently highlighted this feature of Windsor: [His ruling can be read here.]
The Windsor opinion did not create a fundamental right to same gender marriage nor did it establish that state opposite-gender marriage regulations are amenable to federal constitutional challenges. If anything, Windsor stands for the opposite proposition: it reaffirms the States’ authority over marriage, buttressing Baker’s conclusion that marriage is simply not a federal question.
Windsor also taught that federal power may not “put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws.” Yet since that time, the federal government—through federal judges—has repeatedly put its thumb on the scales to influence a state’s decision about its own marriage laws—all the while claiming that Windsor required them to do so.
Judge Pérez-Giménez bemoaned this reality, noting that “[i]t takes inexplicable contortions of the mind or perhaps even willful ignorance—this Court does not venture an answer here—to interpret Windsor’s endorsement of the state control of marriage as eliminating the state control of marriage.”
In Justice Kennedy and Marriage: A Guide for the Perplexed Quin Hillyer also noted Kennedy’s reasoning in the Windsor decision:
In it, Kennedy so repeatedly emphasizes state authority on marriage, both definitional and regulatory, that there seems no intellectually honest way for him now to invalidate state laws that, yes, define and regulate marriage. Indeed, even Kennedy’s hymns to personal dignity, at least in Windsor, were sung only in the context of the power of individual states to recognize such dignity despite DOMA’s alleged determination to trample it. In other words, Kennedy painted the dignity not as something conferring a freestanding right to a particular definition and practice of marriage, but only as something a state might choose (or, by inference, choose not) to confer as a recognized privilege.
Hillyer conjectures as to how Kennedy could circumvent this problem, but Kennedy has some pretzel logic to work on if he’s going to deny his reasoning in the Windsor decision in order to deny states the right to make their own marriage laws. Of course, as we have seen in the past he is capable of “inexplicable contortions of the mind.”
Judges Gavel: Chris Potter. (CC BY 4.0).