Supreme Court took stand To Decide Gay Marriage Question

The U.S. Supreme Court has finally run out of maneuvering room on one of the fundamental civil rights questions of the new century, and will decide whether citizens have a Constitutional right to marry partners of the same sex.

The issue was teed up for them in expert fashion last November by Judge Jeffrey Sutton of the Sixth Circuit Court of Appeals, who broke with many of his fellow judges — and drew a withering dissent from a Clinton appointee on his own bench — by upholding democratically passed gay-marriage bans in four states. At the time I dismissed Sutton’s reasoning as hanging by an “extraordinarily weak peg” of a one-line Supreme Court order denying a gay-marriage appeal from 1972 and suggested the 42-page decision might go down as the Dred Scott of same-sex rights.

In essence, Sutton punted. He said it wasn't for an appeals-court judge to overrule measures passed by large majorities in state elections unless those laws violated one of the fundamental rights enumerated in the Bill of Rights or the Fourteenth Amendment. He claimed to be honoring the Court’s precedent from 1972, but what he was really doing was offering his opinion up as a sacrifice in order to force the Supreme Court to decide the issue once and for all.

In its order Friday, the Court instructed the parties to decide the relatively narrow question of whether bans on same-sex marriage violate the Fourteenth Amendment. While it is certain that none of the men who drafted or passed the civil-rights amendment in 1868 intended it to be used to legalize same-sex marriage, its language is sweeping enough to allow for the judicial recognition of all sorts of rights. No state shall pass any law, it says, which deprives “any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Supporters of same-sex marriage argue that is exactly what the bans in Michigan, Ohio and other states do. Consenting adults who wish to enter the legal state of marriage, which includes significant material benefits including the rights of adoption and inheritance, are stripped from them simply because they are of the same sex. The question is even more important for couples who are legally married in one state and then move to another where their union isn’t recognized. Like the slave whose status flipped from free to slave again when he was moved to Missouri in Dred Scott, those citizens lose a right when they move to a state that bans gay marriage. The Supreme Court has asked for briefing, therefore, on whether states must recognize a same-sex marriage that was legal where it was performed.

This would seem to be an easy one to decide. Dred Scott has gone down as one of the worst Supreme Court decisions ever, so bad that it helped spark the Civil War. But Sutton noted some flaws in the Fourteenth Amendment argument that whoever is writing for the Supreme Court majority will have to reason their way around. There are differences in state laws on marriage already, for example. There are 20 states that allow first cousins to marry, and 25 that ban it. Sutton noted that Ohio recognizes first-cousin marriages performed in other states but wouldn't recognize other marriages including polygamous ones even if they were legal in another state.

What about the right to travel, which judges have found implicit in the Fourteenth Amendment? Sutton dismissed that argument as irrelevant, since same-sex couples can still move to states where their union is illegal and enjoy all the same rights as any other citizen of those states. They lose a right by crossing the border, but not one that citizens of that state enjoy.

Even Sutton admitted his opinion wasn't likely to stand.

“Things change, sometimes quickly,” the George W. Bush appointee noted in the opening passage.

His opinion was really a plea for the Supreme Court to decide the issue, as it isn't the place of a lower-court judge to do it. Hanging his decision, as I said, on the weak peg of Baker vs. Nelson, a one-line order rejecting the appeal of a Minnesota Supreme Court decision striking down a gay marriage back in 1972, he wrote:

Only the Supreme Court may overrule its own precedents, and we remain bound even by its summary decisions “until such time as the Court informs [us] that [we] are not.” …The Court has yet to inform us that we are not, and we have no license to engage in a guessing game about whether the Court will change its mind or, more aggressively, to assume authority to overrule Baker ourselves.

The Supreme Court has avoided the constitutional question of gay marriage so far, most notably in U.S. vs. Windsor.  That 2013 decision invalidated the federal Defense of Marriage Act, but only because it usurped the authority of the states to decide what sort of marriages are legal within their borders. Now the court must decide whether the states have that power at all.