I read the oral arguments, and I read the general media opinion that Obergefell v. Hodges is too close to call. But I think Dale Carpenter has it right that, pace almost every other commenter, we can make a good guess right now that Obergefell will end up requiring all states to recognize same sex marriages, and not by the indirect route of requiring them to afford full faith and credit to out-of-state gay marriages, but by directly requiring them to issue marriage licenses for them themselves.
Carpenter’s column argues that that long line of questions from Justice Kennedy – the only opinion that really matters on this case, everyone else having pretty clearly already made up their minds – about whether the plaintiffs are asking the court to redefine marriage actually signals the opposite of what a lot of people seem to have taken it to mean. Most people take it that Kennedy is concerned that granting the plaintiffs what they want would be overreach. But Carpenter thinks it’s just the opposite: Kennedy is on board with requiring licenses for same-sex marriages, his concern is that the justification for this be on Equal Protection grounds rather than Due Process grounds.
Why does that matter?
It matters because of Washington v. Glucksberg – an opinion in which the Court held unanimously that there was no "fundamental liberty" to participate in doctor-assisted suicide. The reasoning was that no legal jurisdiction had ever recognized such a liberty, there was no common law tradition of recognizing such a liberty, and the traditions of the nation were unsympathetic to one. They now call it the Glucksberg test: if you assert that you have an unenumerated constitutional right to something, that something has to be consistent with the nation’s traditions – or at least not "offensive" to them. Obviously a "fundamental right" to marry someone of the same sex fails the test: never in recorded history anywhere in the world, let alone in Common Law jurisdictions, has there been record of an institution of homosexual marriage. It was synthesized recently by analogy with heterosexual marriage. It is inarguably inconsistent with the nation’s traditions. Carpenter contends that Kennedy wanted to clear up the matter on that point: the Court will not recognize a right to same-sex marriage licenses on that basis.
So what does that leave?
Well, if a right is not fundamental, then to the extent it exists it is created by the state. The Court will not say that there is a fundamental right to same sex marriage, but it might be willing to say that to the extent the state issues marriage licenses, it must issue them without prejudice. There is a good argument that this is where Kennedy is going. Carpenter quotes the relevant part of the exchange:
But that assumes that same-sex couples could not have the more noble purpose [of devoting themselves to their children], and that’s the whole point. Same-sex couples say, of course, “we understand the nobility and the sacredness of the marriage. We know we can’t procreate, but we want the other attributes of it in order to show that we, too, have a dignity that can be fulfilled.”
So, there’s no fundamental right to same-sex marriage, but there might be a right to participate in institutions that the state has set up if the state cannot show good cause why such participation should be denied.
I still think Carpenter is missing a piece of the puzzle, though. Nothing he’s written in his column is actually inconsistent with the popular view – which is that the Court will rule against the Plaintiffs on Question 1 (whether states can codify an institution of marriage that does not include same-sex couples) and in favor of them on Question 2 (whether a state that has such a definition of marriage can decline, on that basis, to recognize same-sex marriages solemnized out of state). Kennedy was up on his normal soapbox about "dignity," the one that proved so crucial in Lawrence and Windsor – to the effect that state-sanctioned marriage very much is about recognizing "dignity." Carpenter could be right that Kennedy is aiming at an Equal Access argument. But anyone who’s read Windsor can see at least one other place that could go – i.e. the same place that Kennedy-authored decision went: of saying that the problem isn’t so much with not issuing marriage licenses to same-sex couples in the first place, but rather taking them away once they’ve been issued. You could pick a nit there and say that not recognizing a marriage in one jurisdiction doesn’t make it go away in any other where it is recognized – and you would be right by any standard of common sense – but Justice Kennedy would disagree with you. The Windsor decision is very much a product of his way of thinking, and the concern was that the United States was taking something away from people by not recognizing marriage which already existed:
The State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. But the Federal Government uses the state-defined class for the opposite purpose—to impose restrictions and disabilities.
By this dynamic DOMA undermines both the public and private significance of statesanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition
DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper.
DOMA’s principal effect is to identify a subset of statesanctioned marriages and make them unequal
and the critical passage:
The federal statute 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 seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.
Granted, those are about a federal law governing a matter over which federal authorities traditionally deferred to state definitions, but it’s easy to see the kernel in there that says that there is a right to recognition of existing marriages – especially in that last quote. "This opinion and its holding are confined to those lawful marriages."
One can see how carefully this has been phrased. Kennedy/the Majority are being careful about the distinction between not recognizing a marriage between minors, say, and not recognizing a marriage based on sexual orientation. They have to be careful about that, because otherwise they can’t maintain the primacy of the several states in laying out marriage definitions. A state has to be defining something, and that will necessarily involve exclusion. But exclusion for bureaucratic purposes is one thing, and exclusion of a class of people for ideological purposes is another thing … seems to be the reasoning here. In any case, it’s the exclusion of previously-existing marriages that’s at issue.
It is but a short skip from there to saying that if Utah refuses to recognize a same-sex marriage that Massachusetts considers valid, it will also be taking away that couple’s "dignity" (whatever that means) by interfering with an already-existing lawful marriage. So, one could easily get the impression from Kennedy’s remarks that he’s angling for a "Yes" on Question 1 and "No" on Question 2: states can define marriage however they want, but they have to recognize marriages from out of state unless they have a good administrative reason not to, and it’s pretty clear that he won’t accept "marriage requires opposite genders" as a good administrative reason.
So, I think Mr. Carpenter is missing a step. I agree with his conclusion, but I don’t agree that it follows from the evidence presented. Kennedy could just as easily be building up to a different kind of Due Process decision – not one based on "fundamental liberty," but one based on the idea that a state would be depriving someone of previously-existing liberty – i.e. liberty granted by their marriage license from the issuing state – by not recognizing their same-sex marriage.
I also think the missing step can be supplied – by simply reading Windsor. The language there is littered with Equal Protection arguments that are presumably meant to set up exactly the ruling we’re about to get.
When New York adopted a law to permit same-sex marriage, it sought to eliminate inequality; but DOMA frustrates that objective through a system-wide enactment with no identified connection to any particular area of federal law. DOMA writes inequality into the entire United States Code. The principal purpose is to impose inequality, not for other reasons like governmental efficiency.
That seems to take it as a given that the traditional institution of marriage is "unequal" by its nature, and it could easily be read to mean that any state law that denies "equal" status to same-sex couples is also "writ[ing] inequality into [its entire State Code]."
The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U. S. 558, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.
Whatever else that is, it doesn’t sound like bare concern with Federalism or traditional State prerogatives, and it doesn’t seem to leave any room for States to decide not to include same sex couples in their own definitions of marriage.
The missing piece, in other words, is that whatever you think about the wording of Scalia’s dissent in Windsor, it was correct on the merits: Windsor presented itself as a Federalism decision, but it was in reality no such thing. It was a carefully-placed return volley by the left wing of the Court setting gay marriage judicial activists up for a slam.
I think Windsor was wrongly decided. Like Justice Scalia, I think it is an abuse of Court authority. But it was decided the way it was decided, and the way it was decided, and the fact that it was authored by Kennedy, is the piece missing from Dale Carpenter’s argument. Whether the Court will address Chief Justice Roberts’ dissent, which was aimed primarily at making sure that Windsor didn’t set precedents beyond the Federalism one Kennedy was cloaking his Equal Protection arguments behind, I don’t know. But it’s hard to read Windsor and not come away with the impression that Kennedy was laying the ground for an Equal Protection argument on future same-sex marriage decisions, and this is that decision.
So I also predict that the Court will rule "No" on Question 1 (rendering Question 2 irrelevant), and it will do it on Equal Protection grounds. States will be required to issue same-sex marriage licenses by next year. And the tortured reasoning that went into these decisions will have done some damage to our Constitutional framework in the process – but more on that some other time.