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.