By Ruth Steinhardt
On Friday morning, the Supreme Court handed down a decision in Obergefell v. Hodges, the consolidated cases regarding marriage equality for same-sex couples in the United States. Alan Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law at the George Washington University Law School, answered GW Today’s questions about the court’s decision and its consequences.
Q: What questions did the Supreme Court consider in this case?
A: The court granted argument on two related questions. First, does a state have to allow same-sex marriages if it allows other marriages? The court said yes, states must do that. So the second question became irrelevant. But the second question was, if states could continue to refuse to perform same-sex marriages in their state, could they refuse to recognize same-sex marriages that were validly performed in another state?
The plaintiffs in the cases the Supreme Court decided made two separate but related arguments. One was the due process argument. The Constitution creates a fundamental right to be married, and states can’t arbitrarily refuse to marry people, including same-sex couples, in violation of that right.
The second argument said that whether there’s a constitutional right to marry in the abstract, once states have created a right to marriage, they can’t deny that right to similarly situated people, same-sex couples and opposite sex couples. That argument comes from the Equal Protection Clause in the Constitution, and most of the lower courts have decided it on that basis. But there have been some due process aspects. In the prior Windsor case, two years ago, Justice [Anthony] Kennedy, writing for the majority, seemed to do a little of both.
A huge range of real-world practical consequences flow from the marriage certificate. Couples who are not legally married may not be able to file joint tax returns, for example. They may not be able to participate jointly in a state health system. If you’re in a long-term same-sex partnership with someone who has health problems, but you aren’t married, the hospital may not speak to you about your partner’s treatment options since you’re not a legal spouse. And you may not be listed on their death certificate if they die, which means you might not promptly receive life insurance payouts and Social Security survivors benefits and so on. So it would be hard to argue that there are no significant and concrete rights connected to the right to marry.
Q: Hasn’t the Supreme Court already ruled on the subject of gay marriage?
A: Well, no. It ruled in the Windsor case that the federal government can’t discriminate [against same-sex partners], and that’s why the Defense of Marriage Act (DOMA) was struck down. But the federal government is not the part of our government that usually deals with issues of marriage and divorce. As a general proposition, those things are the province of the states.
The reasons given by the federal government in the DOMA case for denying marriage rights to same-sex couples had to do with the importance of child rearing and so forth. That’s not the federal government’s responsibility. It is the state’s job to see how children are raised. The problem from the states’ perspective in this case is that they presented no evidence that there was any serious problem with same-sex couples’ child rearing. None of the studies is at all conclusive, or they point in the direction of it doesn’t matter.
Q: What about the striking down of California’s Proposition 8, which had eliminated the right of same-sex couples to marry until it was overturned?
A: The Prop 8 case was the precursor to this, but that case only went as far as the Ninth Circuit federal court. Because the state didn’t appeal the District Court order (although the sponsors of Prop 8 did), the Supreme Court ruled that there was no proper appeal and thus it did not reach the merits of the exclusion. While it’s not a formal precedent, it was an important case because it had a big trial, and the most interesting part of the trial was that the proponents of these gay marriage bans had no evidence. They had no witnesses. They couldn’t put anybody on the stand. Their basic reason for banning gay marriage seemed to be, “We don’t want to change it. Make me.” And now the Supreme Court is going to make them.
Q: What does the decision mean for the states where gay marriage has been banned?
A: They have to stop denying marriage licenses. That’s it. And they have to recognize the benefits of marriage for all couples.
People have talked to some extent about the analogy to Brown v. Board of Education, and whether there will be massive resistance. I don’t think that’s a very useful analogy here, because what will happen is simply that clerks will just start issuing marriage licenses. The first time the clerk refuses to issue a license, he can lose his job. No one will have to be married to anybody they don’t want to be married to. They won’t have to be friends with anyone they don’t want to be friends with. For some people, it’s a matter of principle, religion or whatever else, but it’s hard to imagine there being any significant resistance, or that [any resistance] would be at all effective.
Some states will make a show, and individuals might have to sue for their rights. But it’s hard to imagine there being massive popular resistance like there was in the desegregation of schools.
Q: So what will the next step be for opponents of gay marriage, if there is a next step?
A: Well, they could try to get the United States Constitution amended. But I imagine the Republican Party would be very unhappy to have that as an issue, especially if they pushed all of the candidates for presidential office to support that as a condition of getting their support in the Republican primary. That would be very dicey for the candidates, if they have to take that position. I suspect that all of them would say, “Look, we don’t agree with gay marriage, we don’t like it, but it’s the law of the land, and we will live with it. We don’t think it’s worth a constitutional amendment. Too much time and effort and money. We’ll find some way to survive it.”
If this had happened 10 years ago, I could imagine an initiative for a constitutional amendment. There were states that had constitutional amendments on their ballots, and the people who did that could have pivoted to support constitutional amendments on a federal scale. It’s much more difficult to do, but people who were really rabid about the issue would have gone after support and pressed the politicians. But now, I’d be shocked to see an initiative like that garner significant support.