The Supreme Court has finally granted certiorari to a marriage equality case, specifically the four from Michigan, Ohio, Kentucky, and Tennessee. In those cases, the intermediate appellate court, the Court of Appeals for the 6th Circuit, overturned all the trial court judges’ decisions and upheld the states’ constitutional bans on same-sex marriage. Predicting a Supreme Court decision is risky, but there are many signs that a majority of Justices will reverse the 6th Circuit and find a constitutional right to same-sex marriage.
If one looks at the situation logically, the Supreme Court has already given its answer to the impending cases in United States v. Windsor, the 2013 case that struck down the part of the Defense of Marriage Act (DOMA) that prevented the federal government from recognizing same-sex marriages. Despite what you may have read in the newspapers, Windsor was in no way a federalism case. Those who says otherwise are deluding themselves (and Chief Justice John Roberts is in that camp with his Windsor dissent.) The language in Windsor, its narrative if you will, underscores the fact that it is an Equal Protection Clause case and not a federalism case. The disregard of federalist principles, according to Windsor, is important only insofar as it is evidence that points the way to DOMA’s true crime: the violation of the promise of equal protection.
Windsor rests on one of the Supreme Court’s most famous sleights of hand. The Equal Protection Clause is found in the 14th Amendment, and it only refers to the 50 states, not the federal government. Windsor however rests on the 5th Amendment’s implied promise of equal protection, a constitutional precept that does not actually exist.* The Supreme Court created this legal fiction in 1954 because one of the five school segregation cases was in Washington DC, which, as a federal district, is not covered by the 14th Amendment. It would have completely undermined the Supreme Court to exempt DC schools from Brown v. Board of Education. In Windsor, the Supreme Court majority held that the implied Equal Protection Clause protects same-sex couples from discriminatory laws. Logically, one must acknowledge then that the actual Equal Protection Clause protects against the exact same discrimination. (Very little commentary I have read discusses this, but it is hugely important for the impending cases. That was why Justice Scalia was so animated in his dissent; he understands logic.)
The Equal Protection argument is so strong that opponents have all but abandoned federalism. Federalism is all well and good, but it does not trump the distinctly anti-federalist 14th Amendment. The dominant arguments that have been made since Windsor are as follows:
1. Baker v. Nelson already decided this. Baker was a decision from the early 1970’s in which the Supreme Court received a petition from a gay couple seeking to marry in Minnesota. The Justices did not hear the case. Rather, they issued a short dismissal, saying that the issue (same-sex marriage) lacked a substantial federal question. Opponents (including the 6th Circuit) have clung to Baker, which is ridiculous as Windsor, by its very nature, overrules Baker. Regardless of whether Baker is intact or not (and it’s not), the Supreme Court is not bound by it. By granting cert to these new cases and creating two federal questions for the case,** the Supreme Court has explicitly overruled Baker.
2. Same-sex marriage is too new, and therefore scary. Constitutionally speaking, there is no such thing as a “Too New” doctrine. Nevertheless that formed the basis of Justice Alito’s dissent in Windsor. Additionally, same-sex marriage is not too new; it has existed in the United States since May 2004 (Massachusetts) and abroad since 2001 (Netherlands). Registered partnerships for same-sex couples are older (Denmark 1989, Vermont 2000), and gay and lesbian parenting is older still. There is a large body of scientific and sociological literature studying all aspects of same-sex marriage. In the Michigan case, probably the most significant of the four the Supreme Court will hear, there was a trial in which much of this evidence was considered. Notably, the trial judge found the evidence in favor of same-sex marriage credible and the opposing evidence completely non-credible. As an appellate court, the Supreme Court (theoretically) has to accept as a given the trial judge’s findings and may not reexamine the evidence. Theoretically.
3. Let the people decide! This, along with Baker (above), was the basis of the 6th Circuit opinion. This argument says that the people voted by overwhelming majorities to ban same-sex marriage, and the people have the right to decide. Of course, the answer to that is the people do not have the right to enact an unconstitutional law by majority vote or any other means.
4. Responsible breeding. Given that this argument was so thoroughly eviscerated by Richard Posner in the 7th Circuit cases, it is amazing that opponents still try to use it. That probably has more to do with the fact that there are really no better arguments left in defense of the state bans. The gist of the responsible breeding argument goes like this: same-sex couples cannot have babies due to irresponsible sex, rather they have to plan and prepare for them. Because they are so responsible, they do not need the protections or inducements offered by marriage–unlike those lazy, irresponsible heterosexual parents who just get drunk and start popping out kids and who would not stay together were it not for those state benefits. Attention all heterosexuals, I think you should be insulted by this argument.
5. Lack of animus. This one is a little tough to explain without a constitutional history class, but it goes back to the first major gay rights victory in the Supreme Court, a 1996 case called Romer v. Evans. Over the decades (long before Romer) as the Supreme Court fashioned its Equal Protection jurisprudence, it created tiers of review. Laws that affected people on the basis of certain classifications (race, gender, nationality) were given more consideration than laws that affected other classifications (everything else). Historically oppressed groups were offered greater protections by the courts, and therefore laws affecting them were scrutinized more closely. In contrast, laws that affected other groups, needed only a reasonable explanation to pass constitutional muster. So long as they were not laughed out of court (see: Judge Posner and the responsible breeding argument), the reasoning was accepted.
Prior to Romer, it was assumed that laws targeting sexual orientation were in the “everything else” category. This was in the bad old days when the Supreme Court’s decision Bowers v. Hardwick (upholding sodomy laws) was still good law. Romer changed things. Sort of. The Romer court struck down a Colorado state constitutional amendment targeting gay people on the basis that it was motivated by animus against them, and animus is the only consistent way to strike down a law that affects a non-protected class. Although the Supreme Court has since issued two other high-profile gay rights decisions (Windsor and Lawrence v. Texas), it never bothered to explain whether sexual orientation was a protected class. Therefore, the animus doctrine is still the standard in gay rights cases.
At the Windsor oral argument, Justice Kagan ambushed the attorney defending DOMA by reading to him from the House report, which stated outright that DOMA was passed because of moral disapproval of homosexuality. Windsor was an easy case in this regard. What judges across the country have wrestled with regarding bans on same-sex marriage is how to strike them down without calling the people who voted for them bigots. That however, fundamentally misunderstands animus. Animus is not the same thing as hatred or bigotry. As the law professor Susannah Pollvogt wrote in the foremost article on the subject of animus:
[T]he animus inquiry asks whether a law impermissibly gives effect to–indeed, expresses–stereotypes or biases about a particular social group based on that group’s status or associations rather than individual conduct.
In the case of the marriage bans, given the large body of evidence, the answer is clearly yes, there is impermissible animus. The methods, the motives, the time period, all of these things contribute to a stark reality showing that such bans passed because of animus toward gays and lesbians.
The sides that favor bans on same-sex marriage have no good arguments. From a legal perspective, a fairness perspective, and from a historical perspective, marriage equality should be the law of the land. I would also add that in terms of preventing chaos, the Supreme Court must rule in favor of marriage equality. That the Court should be in this position is its own fault. Had the Court taken cases from the 4th, 7th, 9th and 10th Circuits when they came up, rather than waiting for a circuit split, they could have resolved the issue cleanly one way or another. Since Windsor, around 20 states no longer have marriage bans due to federal court intervention. In those cases where court decisions were appealed, the Supreme Court denied cert. Since that time, thousands of same-sex couples have married in those states. If the Supreme Court rules in favor of state bans, then what happens to those marriages and those families? What happens to those couples who have not married yet but have plans to? Upholding the marriage bans would be a profoundly evil and cruel decision, one of the great travesties in Supreme Court history alongside Dred Scott, Plessy, and Korematsu.
Let us hope the Supreme Court gets it right this time. All evidence indicates that they will.
* The thinking behind the 5th Amendment’s guarantee of Equal Protection is as follows: the 14th Amendment has both a Due Process Clause and an Equal Protection Clause which apply to the states. The 5th Amendment has a Due Process Clause which applies to the federal government. Therefore, the 5th Amendment must also therefore have an Equal Protection Clause because equal protection and due process are inextricably tied.
** There Supreme Court has asked two questions for oral argument: (1) whether the 14th Amendment require allowing same-sex couples to marry; and (2) whether the 14th Amendment requires states to recognize marriages from other states.