Why I’m Jittery About SCOTUS On Marriage, Ctd

A reader quotes me:

You have here a Burkean defense of federalism – something that will very much appeal to Anthony Kennedy, it seems to me. The problem, however, is that the pace of change has quickened so much after Windsor that Sutton is already out-dated. It’s now 36 states, not 19, representing 70 percent of the population, not 45. So his analogy to sodomy laws rather evaporates. If sodomy was upheld as a legitimate zone of privacy, when only 13 states retained such laws, why could not marriage for all couples be upheld as a constitutional right, when only 14 states ban it?

However, you ignore the critical qualifier in Sutton’s formulation: “Freed of federal-court intervention, thirty-one States would continue to define marriage the old-fashioned way.”  The nineteen states got to marriage equality through actions of their citizens, their legislatures, their state courts or some combination of those bodies. As for the “change after Windsor,” the 17 other states that now observe marriage equality do so because federal courts have imposed it on them by extrapolating (primarily from Windsor) to determine what they thought SCOTUS would say. Now, apparently, SCOTUS will speak for itself, and we will find out how heavily Kennedy weighs the concept of federalism in relation to the other factors involved.

Agreed. But civil marriages have already occurred in those seventeen other states, facts on the ground that will be impossible to move. That’s a tough one to suddenly reverse. Several other readers lend their commentary:

I have to chime in here and go back to first principles.

I am well aware that the cultural shift in attitudes about gay marriage is going to be a huge factor in how the Court thinks about this issue, but it really is irrelevant.  If a majority of states are already on board, it certainly makes it easier for the Court, but it’s not properly part of the analysis.  This is a straight-forward equal protection issue.

The whole idea that States have historically defined marriage and so it’s an issue that properly belongs to the States to regulate misses the entire point.  The fact is, States don’t need to be issuing marriage licenses at all.  But if a State is going to regulate marriage (and it doesn’t have to), it must do so in accordance with the Equal Protection Clause.  Full stop.

What other states are doing, how popular the issue now is, how Americans in general feel about it is all irrelevant.  When two Americans walk into a government office and ask the State to issue them a license, they must be treated the same as all others who might walk in and ask for the same license.  There are relatively few legitimate bases to make Equal Protection distinctions built on gender, and so far, no court that has actually addressed that issue has found that those distinctions are justified here.  “We’ve been doing it this way forever” is simply not a legitimate excuse. (I’m looking at you, slavery.)

I say it goes 6-3 (although it should be unanimous).  Scalia is just an intellectually dishonest fraud and always has been and won’t vote for this based on a ludicrous originalist analysis.  And Alito won’t vote for it because his personal commitment to conservative positions simply won’t allow him to exercise proper judicial independence.  And Thomas?  Pffft.  I say Kennedy and Roberts are on board, and Roberts authors it because he knows full well history will judge it as one of the most important cases to come out of the Roberts Court, if not the most important.

And if Roberts is smart, it will be a crisp 7-10 page opinion that will make Scalia’s unhinged, caterwauling, 40-page dissent look like the deranged drivel that it is. If there is anything to be worried about here, it’s the little nuggets Roberts tucks into the opinion that actually restrict Equal Protection that he and the conservatives will plan to rely on in future cases.  I fully expect some of that here.  It’s just part of the judicial backroom deal making that goes on in any appellate court.

I sure hope our reader is right. Another quote of mine:

But what about the states’ rights argument? If public opinion is moving so fast, why not let federalism take its course? That’s my worry. Could Kennedy fashion a ruling that keeps marriage equality in those states that already have it, allow the minority to retain bans, but insist that any valid civil gay marriage in one state be recognized in any other? I don’t know how constitutionally you could do this – but I don’t doubt figuring out a balance between federalism and civil rights is what Kennedy (and maybe Roberts) will be assessing. A non-Fourteenth Amendment decision that nonetheless insisted on recognition, if not celebration, of same-sex marriages in every state might be a tempting middle way.

There is ample precedent for this “middle way” (this is not an endorsement, BTW).  The different states have long had different laws concerning age of consent, degree of kinship, and amount of formality needed to enter into or dissolve marriages.  Some states permit first cousins to marry, others do not.  Some states allow minors to marry, others make you wait until you are 18.  In some states you need a blood test, others have far less paperwork, and some still recognize common-law marriages.

But once you get married in one state (assuming an opposite sex relationship), you’re considered married in all; Oregon would not tell a pair of first cousins who married in California that their marriage is no longer valid when they cross Siskiyou Pass.

Divorce has been handled in the same way.  No matter how much New York State despised divorce during the mid 20th century, they were powerless to prevent their residents from travelling to Nevada (the first state with no-fault divorce laws) and getting their marriages dissolved, and then returning to the Empire State as two single persons.

This has long been the default position with marital law, and a big reason why the Defense of Marriage Act was passed in the first place: to nullify the effect of Full Faith and Credit Clause (which Congress has the power to regulate) when it comes to same-sex marriages.  Much as Windsor threw out the other half of DOMA (barring federal recognition of same sex marriages in states where it is legal), I could see the Court striking the rest of it, even if it lets states decline to perform such marriages directly.  The Court has already held that Congress was acting with animus to gays when it passed DOMA, and the Act is pretty explicit in targeting gays, so for the Court to preserve it in the face of a direct challenge would be a big surprise.  And could be done without attacking “federalism”, any more so than the Full Faith and Credit Clause already burdens states rights.

Well, we’ll see soon enough.