Looking at the Single Sex Marriage Opinion

As you are probably aware by now, last month the Supreme Court ruled that all states must recognize single-sex marriages and allow single-sex marriages to be performed in-state. Unfortunately, the reasoning of the Court is weak, and leaves unresolved other issues related to sexual orientation discrimination. It also has the potential to undermine longstanding understanding of how the Equal Protection Clause of the constitution is interpreted.

As in most of the single-sex marriage cases in recent years, the various plaintiffs sued either to have the states issue a marriage license or recognize a marriage performed in another state. The Court ruled in favor of the plaintiffs seeking to marry or have marriages recognized in other states under both the Due Process Clause and the Equal Protection Clause. The opinion, written by Justice Kennedy, states that marriage is a fundamental right for four reasons: the expression of personal autonomy in selecting a spouse, the commitment of the spouses to each other, the power of marriage to safeguard children, and the fundamental contribution of marriage to the social order. It then noted that due process, by recognizing rights, and equal protection, by ensuring nondiscriminatory access to rights, had interlocking functions, and that denying marriage to single-sex couples interfered with their right to marry under both clauses. The Court ruled, essentially, that single-sex couples were entitled to the right to marry because of its fundamental nature. The problem is that it didn’t give a good explanation of why that right was improperly infringed upon when states declined to recognize single-sex marriages.

The Court did not discuss why the states opposing single-sex marriage had not demonstrated a compelling interest allowing them to limit access to marriage. Normally, when discussing a fundamental right, states are allowed to argue that they have a compelling interest. It’s a difficult burden to overcome, and only in very rare cases do the courts accept a compelling interest, but the states did present arguments that should have been addressed more clearly. At minimum, most of the lower courts reviewed those arguments and determined that the states’ arguments did not even show a rational basis for restricting marriage to opposite-sex couples, but the Court does not discuss this. Ultimately, this omission may require the courts to revisit prior cases approving minimum ages for marriage, prohibitions on marriage of close relatives, and possibly the limitation of marriage to two spouses.

A second shortcoming of the opinion is its failure to resolve, once and for all, what level of protection under equal protection and due process gay people are entitled to. Justice Kennedy now has written four opinions on gay rights, and in none of them has he made this point clear. This leaves legal analysis unpredictably vague. Usually, in an equal protection situation, the first step is to decide whether the case involves a fundamental right (triggering high protections) or the affected class of persons has low (business groups), intermediate (gender), or highly (race) protected status under equal protection law. The level of protection, or the involvement of a fundamental right, determines how strictly the courts look at the law at issue. I would expect that if push came to shove, lower courts would probably place sexual orientation discrimination on a level similar to gender discrimination, which allows different treatment in the law if a significant and credible reason can be shown, but blocks most classifications. I do not know where the Supreme Court is likely to come down on this question. Justices Scalia, Thomas, and Alito appear nimplacably hostile to gay rights and Chief Justice Roberts is probably opposed.

A final problem with the Court’s reasoning is another vague phrase that Justice Kennedy used prominently, “equal dignity.” Prior to this opinion, the concept of equal dignity referred only to the rule that newly admitted states had the same rights and powers as the original 13 states. It has not been used to discuss individual rights. Exactly what equal dignity will mean in this context is anybody’s guess. We don’t know who it will apply to or in what situations it will be applied.

All of this uncertainty means that the four dissenting opinions did have two very important points First, the majority opinion seems to hearken back to an era in which the Court invalidated a series of business regulations on vague due process grounds. The most notorious case involved the throwing out of an eight-hour day for bakers on the grounds that it interfered with the right of the employees to contract. (That ruling is generally seen as having been abandoned in later cases without ever being officially overruled, but at the time, there was serious talk of repealing the Due Process Clause.) Second, because Justice Kennedy didn’t clearly state how he got to his conclusion, the opinion looks like a decision to reach a result without caring how the Court got there.

We also don’t know whether the Court is moving away from the usual approach to equal protection that I discussed above. With four opinions on sexual orientation since the late 1990s avoiding the issue, I think the Court simply can’t come to an agreement, but it leaves open the question of whether other classes, such as transgendered persons, could receive similar treatment.

Most likely, the decision to allow Justice Kennedy’s reasoning to stand as the official opinion of the Court was to ensure that the 5-4 majority in favor of single-sex marriages would hold up. The other four justices voting with Justice Kennedy probably decided that if they went with a more traditional reasoning, they would lose Justice Kennedy, and would not be able to convince Chief Justice Roberts to come over to their side. I think it will be some time before the dust settles.

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