Same-Sex Marriage, Re-revisited

April 27, 2015

Oral argument in Obergefell v. Hodges, No. 14-556 (and related cases) happens on Tuesday, April 28, 2015. Obergefell is one of the parties in the Sixth Circuit cases which created the circuit split on same-sex marriage, providing the Supreme Court with a reason to take up the subject. (I wrote about this subject on November 17—Same Sex Marriage in Michigan, Ohio, Kentucky, and Tennessee: An Analysis of DeBoer v. Snyder—and again in DeBoer v. Snyder: An Update on January 19, 2015.)*

The Court will consider whether: (1) the Fourteenth Amendment require a state to license a marriage between two people of the same sex; and (2) 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? People assume Justice Anthony Kennedy will provide the deciding vote because he wrote the opinion in U.S. v. Windsor, No. 12-307.

In Windsor the Court set aside the Defense of Marriage Act on Fifth Amendment equal protection grounds. It held that that the law treats one group of people—same-sex married couples—differently, without any rational basis. Embodied in Windsor, however, is the notion that DOMA interfered with a state’s ability to define marriage, by making some of that state’s married couples “second class couples.”

Obergefell and its companion cases focus on 14th Amendment equal protection and due process rights. Lyle Denniston, reporter extraordinaire for SCOTUSblog, provides an excellent overview of issues and options in Same-Sex Marriage: The Decisive Questions. I don’t want to delve too deeply into the possible outcomes Mr. Denniston posits. Read his excellent piece for that perspective.

For me, frankly, the issue gets resolved easily on equal protection grounds. As a nation we provide lots of financial and other benefits to married couples. Married couples get better tax rates, and many more financial “goodies.” Intestacy laws favor spouses when people die without wills. In settings in which access to information matters—think ER or ICU in the hospital—being a spouse matters.

We justify marital benefits because we want people to procreate. It’s a dirty little secret that couples with children shoulder a burden which benefits all of us: a population which will work and pay for our retirement benefits with its payroll tax (and income tax payments.) That said, we provide the same benefits to married couples without regard for their ability or interest in procreating.

If we limited marital financial benefits to those married couples with children, there might be an argument against same-sex marriage. We don’t, though, and because we don’t so at the federal level or in any state, there’s no rational basis for denying same-sex couples the right to benefit from the benefits attendant to being married.

I understand and appreciate the state’s rights argument. Marriage has been the province of state laws for centuries. I also know Justice Kennedy holds as a core value the notion that the federal government cannot exercise too much power over states, which is why anyone who favors same-sex marriage should worry about this case.

Now, in recommending the Denniston piece I noted that “I don’t want to delve too deeply into the possible outcomes Mr. Denniston posits.” With a toe in the water, my very smart law professor friend Barbara Atwood mentioned a possible no/yes 5-4 outcome back in January. Justice Kennedy writes for the majority, telling states they do not have to license same-sex marriages, but that they must honor same-sex marriages licensed in other states. I think she may be right, although such a ruling gives more deference to states than I think they deserve, given a promise of equal protection under the law, and given the likelihood that a “split baby” ruling will encourage states to ignore the decision.

*I don’t know why or how the Court decides which party names get first billing.

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