Thursday, June 18, 2015
Gay Marriage: The Court's Four Choices
Although the case is called Obergefell v Hodges (an Ohio case), there are actually four cases involved: Obergefell v Hodges (Ohio), Tanco v Haslam (Tennessee), Bourke v. Beshear (Kentucky) and DeBoer v Snyder (Michigan). These four cases are from the four states that comprise the 6th Circuit, the only federal circuit court that has ruled against finding a right to same-sex marriage.
Contrary to popular understanding, Obergefell, Tanco, and Bourke do not directly address the question of whether states must permit same-sex marriage; all three are cases where a valid same-sex marriage was performed in another state, and the plaintiffs are suing to have their marriages recognized in their new home states. Only DeBoer raises the issue of same-sex marriage within their home state Michigan, and even that case is a little tortured because the original suit was brought against a Michigan law forbidding adoption by same-sex couples, not the actual marriage statute; the complaint was later amended to address the issue of same-sex marriage in Michigan.
With that as background, the Justices have a wide variety of choices open to them. I present them from the narrowest to the broadest possible rulings:
1) Full Faith & Credit: SCOTUS could address the very narrow issue as to whether or not a state that prohibits same-sex marriage must recognize valid same-sex marriages performed elsewhere. The precedents are somewhat divided here: interracial marriages must be recognized across state boundaries, but other marriages – such as that between cousins (which are permitted in some states, but not others) or between young people (state marriage laws vary, some permitting 16 year olds to marry, while one requires an age of 19) have been decidedly inconsistent. In a narrow ruling, the suits would be decided under the Full Faith & Credit Clause of the Constitution. Even if the couples win, it would not require the states in the 6th Circuit to legalize same-sex marriage: it would only require them to recognize valid marriages performed elsewhere. This is the least likely scenario (but it is possible) and would happen only if Justice Kennedy felt it necessary to ‘slow down” the march toward GLBT equality. A win, but a disappointment, and the battle continues.
2) Gender Bias. Raised as a possibility by Justice Roberts, this approach would apply the existing law that outlaws discrimination based on gender without a compelling state interest. In oral arguments, Roberts asked, “If Sue can marry Tom but John can not marry Tom, isn’t this a simple case of gender bias?" This has several advantages: it would effectively legalize same-sex marriage throughout the US, while creating no new law or precedent; it is also a way for the conservatives to further the issue of same-sex marriage without specifying specific “gay” rights. This approach would probably have a decisive majority of 6-3, or even 7-2, with Roberts (and possibly Alito) joining in the majority. Since this is basic existing law, gender discrimination, no new law, no new rights or ‘protected’ status for gays would be granted. This could be 6-3 or even 7-2, which would add a sense of legitimacy to the court’s ruling, and would be the 'compromise' approach in an effort to gain the widest acceptance of the decision. To me, this is a very possible outcome.
3) Equal Protection Clause. This would immediately result in legal same-sex marriage across the country, and, by applying it to gays and lesbians, would create a new application of this clause. This approach has the advantage of a clear statement concerning GLBT marriage rights, but would be more controversial than choice #2 above; it would likely be a 5-4 (possibly 6-3) decision. This is the outcome most LGBT groups are looking for.
4) Heightened Scrutiny/Protected Class. This would be the most far-reaching approach, and would affect not only marriage, but every law in every state that discriminates against gays and lesbians (such as employment and job termination, adoption, etc). Under current US law, it IS legal to discriminate between groups if the government has a rational basis. So, for instance, a state may pass a law requiring 7 years of school for doctor licensing, 5 for dentists, and 8 for anesthesiologists if they so choose. This is the standard the 6th Circuit applied to the state laws in Michigan, Ohio, Tennessee, and Kentucky. However, if a group of people is found to have been the subject of ‘animus’ (hatred) resulting in discriminatory laws, then the government must go beyond a mere rational basis; they must prove a “compelling state interest” in order to discriminate. This is a very high standard, and laws almost never meet it. If the Court decides that gays and lesbians are to be considered a protected class, there are several ramifications: first, nothing might happen initially: the Court could send all four cases back to the 6th Circuit for a re-hearing under the new standard. Justice delayed. However, in the long-term, this would affect single every law in the nation that discriminates against gays and lesbians. It is the most sweeping choice; gays would win the most rights for the long term, and the decision (like Roe v Wade) would also generate the most controversy. It is highly doubtful that this could be anything better than a 5-4 vote…and in fact, somewhat unlikely, Justice Kennedy would need to go further out on a limb than he ever has to make this happen. the dissenting opinion would likely be vicious, and conservative political groups would have the most ammunition against the court.
Of course, the Supreme Court often surprises…and often the majority vote is fractured into majority and concurring and dissenting opinions, so elements of all of the above may actually be part of a very complicated decision.