THE BLOG
01/20/2015 04:24 pm ET Updated Mar 22, 2015

Is a Marriage Equality Compromise Taking Shape at the Supreme Court?


An earlier version of this essay originally appeared on the American Constitution Society Blog.

When the Supreme Court decided Friday to hear four marriage equality cases, it ordered the parties to file briefs addressing two separate questions: “1) Does the 14th Amendment require a state to license a marriage between two people of the same sex?” and “2) Does the 14th 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?”  (Emphases added by me.)

By splitting the question in this way, the Court appears to be saying that state-to-state marriage recognition could be a stand-alone issue under the Constitution, related to but distinct from marriage licensing and creation.

I’ve been advancing this idea -- that in addition to a right to marry, there is a separate constitutional right to remain married, and that non-recognition by some states of valid same-sex marriages should be seen as a distinct constitutional problem -- for several years now, including in a 2012 article in the Michigan Law Review, titled “The Constitutional Right to (Keep Your) Same-Sex Marriage.” 

You see, most states that enacted laws against gay marriage went beyond denying licenses to gay couples -- they actually claimed to effectively void or nullify existing legal marriages that their resident same-sex couples might have obtained in other states.  This is cruel, and a recipe for legal havoc.  As three Tennessee couples have told the Supreme Court, for them,

"the price of moving to Tennessee was loss of their legal status as married couples and as family members…. Tennessee’s laws treat petitioners’ marriages as legal nullities, depriving petitioners and their children of all the protections, obligations, benefits, and security that Tennessee readily guarantees to other married couples."

And so my suggestion back in 2012 -- before anyone thought the whole issue would be at the Supreme Court this quickly -- was that nullification of existing marriages was a greater harm and a more urgent question that the Supreme Court could address, thereby paving the way for a later right to marry.  Law students learn that blockbuster decisions like Brown v. Board of Education (school desegregation) and Loving v. Virginia (interracial marriage) were preceded by cases that took smaller steps and paved the way for the bigger victories.

Lower courts started paying attention to the idea.  In 2013, an Ohio federal district judge graciously credited my work in holding that Ohio had to recognize the marriage of two men who had been married in Maryland.  Several more courts also dealt with recognition of existing marriages as a distinct issue.  Last June, the Tenth Circuit, in striking down Utah’s marriage ban, commented that “we agree with the multiple district courts that have held that the fundamental right to marry necessarily includes the right to remain married.”  

So now, the right to remain married is before the Supreme Court, and speculation has begun about what the Court might be up to.  Here are my thoughts. 

There are good reasons why Justice Anthony Kennedy (who is solicitous toward gay rights but also centrally concerned with federalism and the prerogatives of the states) and Chief Justice John Roberts (who may be thinking about how history will judge him) might see the possibility for some creative middle ground: “yes” on the right to remain married, but “question-reserved-for-another-day” on the right to get married.  (It’s impossible to believe Justice Kennedy would join an opinion that outright rejected the right to marry.) 

It could be a grand gay rights/federalism compromise: the Court would appear to show restraint and respect for states where anti-marriage-equality sentiment still dies hard, while admonishing these states that they may not treat valid marriage licenses from their sister states like pieces of worthless foreign currency. It would instantly give honor and effect to many currently non-recognized marriages, and dramatically mitigate the harms and indignities that result when couples’ marital status is changing and uncertain.  The principle that existing same-sex marriages, where states have created them, must be afforded the same "dignity" as existing straight marriages was the crux of Justice Kennedy's reasoning in striking down the federal Defense of Marriage Act in 2013.

And so perhaps the Chief Justice, wanting to see the Court break out of its predictable and bitter splits on hot-button social issues, would lend his vote and his name to a limited, one-step-at-a-time approach that simply stopped states from dishonoring existing marriages and inflicting pointless injuries on same-sex couples.  It might even mute the usual eruptions from hard-right conservative Justices Scalia and Alito.  In a couple of years, the Court could come back, finally drag states like Alabama, Mississippi and Texas into line, and finish the job once and for all.

Let me be very clear: I am speculating and analyzing here, but I am not rooting for the compromise outcome.  It's possible some of us are just reading too much into the wording of the Court's order. At any rate, anything less than a clean right-to-marry victory would be a huge disappointment to legal progressives, the strategists and litigators who brought the issue this far, and the thousands of couples who still want to marry in 14 states but can’t.  And rightfully so.  Two weeks ago in this space, I argued that the Court must resolve the right to marry at the national level.  Last week on SCOTUSblog, I argued that the state laws preventing gay couples from marrying were infected with unconstitutional anti-gay animus.

Moreover, the composition of the Court could change and become less sympathetic to gay rights if a Republican president is elected in 2016.  Swing-vote (and 78-year-old) Justice Kennedy -- who has authored three previous landmark decisions for gay/lesbian rights -- should not tempt fate.  He should hold out for the historic right-to-marry decision that many of us suspect he would like to write.

One seemingly picayune but important question: should the right to remain married apply to couples who evade their own states’ laws (Ohio couple flies to Maryland, takes vows, wants Ohio to consider them married), or only to couples who got married in an equality state, then only later pulled up stakes and moved to a hostile state? 

I explain in the Michigan article why my constitutional argument only works for the latter couple. They have a Due Process Clause liberty interest, based on reliance and justified expectations, in the ongoing existence of a marriage they obtained in good faith. But American common law has always looked disfavorably on couples who skirted the laws of their own domicile, deeming them not entitled to the usual “place of celebration” rule governing marriage validity. 

Bottom line: most of us are confident that marriage equality will be the rule in all 50 states in a short time.  But the Supreme Court can be full of surprises, and right now, the justices obviously see not one, but two, distinct questions in how the Constitution should regard gays, lesbians and marriage.