Chemerinsky: Facing history, SCOTUS is likely to approve same-sex marriages
Erwin Chemerinsky.
In Obergefell v. Hodges, the Supreme Court will review a 6th U.S. Circuit Court of Appeals decision that upheld laws in Kentucky, Michigan, Ohio and Tennessee prohibiting same-sex marriages. The 6th Circuit’s 2-1 ruling followed decisions in the 4th, 7th, 9th, and 10th Circuits that declared unconstitutional state laws prohibiting gay and lesbian couples from marrying.
The Supreme Court has granted review on two questions: (1) Does the 14th Amendment require a state to license a marriage between two people of the same sex? (2) Does the 14th 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?
Reflecting the importance of the case, a large number of briefs have been filed on both sides. On the petitioners’ side, urging the court to strike down such laws, are separate briefs challenging each of the state’s laws and supporting briefs from the United States and about 50 amici. On the respondents’ side, urging the court to uphold these laws are briefs from each of the four states and about 66 amici.
Obviously, there are many issues raised in all of these briefs, though the court need not, and certainly will not, address all of them. Some of the most important questions addressed in the briefs are:
• What is the significance of the court’s summary affirmance in Baker v. Nelson, issued in 1972? In Baker v. Nelson, the Supreme Court, without opinion, summarily affirmed an 8th Circuit decision rejecting a challenge to Minnesota’s law limiting marriage to opposite sex couples. The states argue that this is a binding precedent and resolves the matter. The challengers, though, virtually ignore this case. The Supreme Court gave it no weight in United States v. Windsor, decided in 2013, striking down a key provision of the federal Defense of Marriage Act. The challengers believe that if the majority of the court believes that these laws are unconstitutional, a 40-year-old summary affirmance is not going to make any difference.
• What is the appropriate level of scrutiny for sexual orientation discrimination and do state laws prohibiting same-sex marriage deny equal protection? The United States urges the court to adopt “heightened scrutiny” for sexual orientation discrimination. The states and their amici believe that only rational basis review is appropriate for laws discriminating based on sexual orientation.
Although this is an important question, the Supreme Court could strike down the states’ laws without even reaching the level of scrutiny question. In Lawrence v. Texas, decided in 2003, the court declared unconstitutional a Texas law that criminally prohibited private, consensual adult homosexual activity without indicating the level of scrutiny that was being used. Even more important, in United States v. Windsor, decided in 2013, the court’s declared Section 3 of the Defense of Marriage Act without using heightened scrutiny or even specifying the level of scrutiny being used.
• Does the right to marry, which previously has been recognized by the Supreme Court, include a right to same-sex marriage? The Supreme Court long has held, in cases like 1967’s Loving v. Virginia and 1978’s Zablocki v. Redhail, that the right to marry is a fundamental right. The supporters of marriage equality argue that they are asking the court to apply this existing right to protect gay and lesbian couples. The states argue that the challengers are asking for the recognition of a new constitutional right. They contend that great weight should be given to the long tradition of marriage being only for opposite sex couples, a point emphasized by Justice Samuel Alito in his dissent in United States v. Windsor.
• What is the appropriate role of the states’ political process and of the federal judiciary with regard to this issue? The 6th Circuit’s opinion upholding the laws in these four states, written by Judge Jeffrey Sutton, stressed that this is an issue that should be decided through the political process and resolved at the state level. This is a core theme of the briefs for the states and their amici. It is clear that the federalism argument is designed to appeal to Justice Anthony M. Kennedy, who has long championed state sovereignty. Those who hope that the court will affirm the 6th Circuit stress that Justice Kennedy’s opinion in Windsor stressed that marriage is traditionally regulated at the state level.
But the challengers and their amici argue that deference to the states and the political process is unwarranted when there is a denial of equal protection or an infringement of a fundamental right. In Loving v. Virginia, the court declared unconstitutional state laws prohibiting interracial marriage despite their existence throughout American history. That issue was not left to the states and the political process, nor was the long tradition of such laws dispositive.
• Do state laws prohibiting marriage equality serve sufficiently important government interests? Ultimately, this is the issue that the case most turns on. Do the states have a good reason for keeping gays and lesbians from being able to marry? In Windsor, the court concluded that Section 3 of the Defense of Marriage Act, which said that for purposes of federal law, marriage had to between a man and a woman, served no legitimate purpose and was based on an animus against gays and lesbians.
The primary argument made by the states and their amici is that marriage is linked to procreation and that only opposite sex couples can procreate without artificial assistance. Michigan, for example, echoes the 6th Circuit’s opinion and declares in its brief: “Separating marriage from procreation dramatically changes the state’s interest in the institution. … It is the state’s interest to encourage opposite sex couples to enter into a permanent, exclusive union within which to have and raise children that motivates state marriage laws.”
But the problem with this argument is that marriage never has been linked to procreation. Opposite sex couples can marry even if they do not have the desire or the ability to have children. More importantly, same sex couples will have children–through adoption, surrogacy, and artificial insemination–whether or not they can marry. If marriage is beneficial to children in creating a stable family, these children should have that benefit as well. The states emphasize that only heterosexual couples can have children without artificial assistance, but that does not explain why same sex couples should be denied of the right to marry and why children of these couples should not able to have married parents.
• If there is not a constitutional right to marriage equality, must a state recognize same sex marriages from other states? This is the second question upon which the Supreme Court has granted certiorari, yet it is given relatively little attention in the briefs of the challengers and their amici. By contrast, the brief for the state of Ohio focuses almost entirely on this question and argues, as do some of its amici, that each state should able to decide for itself what it deems to constitute a marriage.
Predictions are free and worth what they cost, and we’ll all know by the end of June how the court will decide these cases. That said, my prediction is that Tuesday, June 30, at about 10 a.m. Eastern Time, the court will hold 6-3 that laws prohibiting marriage equality deny equal protection. Either Chief Justice John G. Roberts or Justice Kennedy will write the opinion for the court and it will be joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan.
Why this prediction? There have been three Supreme Court decisions in history expanding rights for gays and lesbians: Romer v. Evans, Lawrence v. Texas, and United States v. Windsor. The majority opinion in each was written by Justice Kennedy. He likely sees one of his most important legacies as being the expansion of rights for gays and lesbians. Liberals and conservatives alike expect that Justices Ginsburg, Breyer, Sotomayor, and Kagan will vote to strike down these laws.
It is harder to predict Chief Justice Roberts’ vote. Unlike these other justices, he dissented in Windsor. But I believe that Chief Justice Roberts cares deeply about his legacy and he knows that no matter how long he serves as chief justice, he will be evaluated in part on this issue. I think he is a justice who wants to be on the right side of history and there is no doubt where history is going on this question. At this point, marriage equality exists in 38 states. The issue is less about whether the court will extend it to the country and more about whether the court will take the right away from the states where it exists by virtue of federal court decisions. Twenty foreign countries now allow marriage equality. Recent opinion polls show that 61 percent of Americans favor marriage equality and support for it is overwhelming among those under age 35.
Ultimately, for Chief Justice Roberts, and for Justices Kennedy, Ginsburg, Breyer, Sotomayor and Kagan, the question is whether they want to be part of the next Plessy v. Ferguson, a decision regarded by history as based on bigotry and being terribly misguided, or the next Brown v. Board of Education, a ruling seen as expanding equality and the court playing its most important role for society. Looked at this way, it is easy to see why most expect that the court will find a constitutional right to marriage equality.
Erwin Chemerinsky is Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of seven books, including The Case Against the Supreme Court (Viking, 2014).
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