Commentary

Did Supreme Court Telegraph Its Ultimate Ruling on Gay Marriage?

As any good lawyer knows, framing the question you ask a court is just as important — often more important — than providing a well-argued answer that helps your client. Well, when the Supreme Court, as expected, decided to take up gay marriage, it unexpectedly reframed the “questions presented” in the four cases it took up and consolidated for argument. Instead of accepting any of the formulations presented in the four petitions for review, it asked the parties to brief these two questions:

  1. Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
  2. Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

This was unusual; typically the justices simply decide whether to take a case based on the petitioners’ articulation. That’s why first-year legal-writing classes spend so much time working on those “questions presented.

So what does this mean? UC-Irvine law professor Rick Hasen found the first question “odd” because it focused on state powers and obligations rather than individual rights, which ”perhaps keeps the court from getting into questions about heightened scrutiny for sexual orientation discrimination.” Harvard law professor Larry Tribe suggested that the reframed questions “technically leave open a middle path along which the court would prevent states from discriminating against same-sex couples lawfully married in their home states without requiring any state to take the affirmative step of issuing its own marriage licenses to same-sex couples.” (In my initial reaction to the cert grant, I speculated on the same compromise possibility but ultimately concluded that this was less likely than a clean win for the challengers on both questions.)

The Supreme Court has assured that state marriage-licensing and -recognition laws will fall on the most legally correct basis.

More interesting than the “middle path” or split-the-baby hypothetical is the centrality of the Fourteenth Amendment’s Equal Protection Clause to the questions as reframed. Without naming that provision explicitly, the Court has homed in on the central issue that has been presented by the same-sex-marriage (legal) debate from day one: do state governments violate the basic principle of “equality under law” — constitutionally codified in the Equal Protection Clause — when they grant marriage licenses only to opposite-sex couples? (Or when they recognize out-of-state marriages only between opposite-sex couples.) That is, the government needs a good reason to treat people differently. So is denying marriage licenses to same-sex couples more similar to denying driver’s licenses to blind people or to denying business licenses to blind people? Are the state’s justifications for treating couples differently based on sexual orientation good enough?

Cato CATO +1.43% and the Constitutional Accountability Center have long been framing the debate in that way, intentionally bypassing questions like whether the right to state recognition of marriage is “fundamental” — and then whether that right is protected under “substantive due process” — or whether sexual orientation is a classification subject to “heightened scrutiny.” These sorts of lawyer games, necessitated by the Supreme Court’s departure from constitutional text in bifurcating our rights in the 1930s, are really beside the point. The only issue that need be answered here, again, is whether state governments are justified in extending this particular license/institution only to certain types of people.

Now, that understanding necessarily worries some observers. Hasen is concerned that the Court “leaves open the possibility that states could get out of the marriage business entirely. This perhaps takes away issues related to the due process rights of same sex couples.” Cornell law professor Michael Dorf echoes that sentiment, noting that  ”one might think that the answer to both questions is no, so long as the state doesn’t license or recognize any marriages, same-sex or opposite-sex.” But these worries, as Dorf goes on to say, are academic, given that all states do issue marriage licenses (and recognize marriages from other states and foreign countries).

Indeed, as the marriage debate has progressed, I’ve been disappointed that not a single state — not Utah or Mississippi or Oklahoma, or any other conservative exemplar — ever passed a law saying that if a court strikes down its denial of marriage licenses to same-sex couples, it’ll get out of the marriage business altogether. That’s too bad from the perspective of someone who thinks that marriage is yet another area of policy government should exit — as well as someone who likes seeing federalism in action – but it really makes the Supreme Court’s job quite easy.

So yes, by framing the marriage debate as one over equal protection rather than anything else, the Supreme Court has assured that state marriage-licensing and -recognition laws will fall on the most legally correct basis.

Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review.