The prospects for the Supreme Court to issue a ruling affecting the marriage rights of same-sex couples seem to be accelerating. At the forefront are three distinct contexts for litigation: whether states can be required to authorize same-sex marriage, whether the federal government can deny state-created same-sex marriages federal recognition, and whether states can be required to recognize valid same-sex marriages performed in other states. Two U.S. circuit courts, the Ninth and the First, have issued opinions that treat with skepticism the governmental interest in blocking gay marriage. Both Courts proceeded with the caution required by Circuit Courts, which must follow Supreme Court precedent. For that reason, both courts avoided ruling that same-sex marriage is a fundamental right, and also avoided holding that gay men or lesbians are entitled to special judicial solicitude to protect them from unfavorable legislation.
The Ninth Circuit’s conclusion limited the ability of a state to authorize a legal status with rights just like marriage, but withhold the word marriage. The Court reasoned that stripping away the word “marriage,” while leaving the rights intact, has no purpose except inflicting second-class status on gay couples.
In addressing the state’s obligations to authorize marriages of residents, the California case has no direct concern with federalism. The primary concern is the local marriage law of California.
In the First Circuit opinion, there is a subtle yet powerful convergence of federalism principles and equality principles. The First Circuit held unconstitutional a provision of federal law, Section 3 of the Defense of Marriage Act (DOMA), which defines the word marriage, for all purposes of the U.S. code, as the union of one man and one woman. Significantly, the First Circuit held that the law violated both federalism rules and principles of equality.
The Court concluded that there was no federal interest sufficient to justify disrespecting state control over marriage or treating married gay couples unfavorably. The resulting conclusion is a repudiation of the federal interest in withholding federal marriage status from state-created marriages. Federalism, said the Court, allows “a diversity of governance based on local choice.”
Today, many states treat same-sex marriages created by other states as legally null and void. That means that, even without Section 3 of DOMA, states could recreate its voiding effect at the federal level. The result would be two classes of married gay couples in the U.S. A solution I have proposed in a recent op-ed would combine federalism and equality norms, like the First Circuit, to allow gay marriage nationally without declaring it a fundamental right that all states must enact.
If the Court should hear either or both of the Ninth Circuit and the First Circuit cases, it could reach out to hear a case in which a couple attacks a state law that treats their duly solemnized marriage as nonexistent. The Supreme Court could adopt features of the First Circuit’s reasoning and rule that “choice-of-law” norms allowing states to cancel marriages that are increasingly common and well accepted in the United States do not have a sufficient rationale for the harm they inflict on equality and reciprocity. In doing so, the Court could stop short of calling same-sex marriage a fundamental right or declaring sexual orientation a status in need of the special protection of federal judges.
This path would avoid entangling the Court in applying equality reasoning directly to the creation, and to the incidents of, the marriage status. Should a state court make a call that is antithetical to equality principles, such as not allowing a same-sex spouse to inherit by intestacy, a district court could quickly remedy the problem. But the primary judicial forum for working through the equality principle, enunciated as applicable to marriage status, would move to state courts.
If the Court took that tack, the worst injustices could be averted while the Court allows some role for the local choices that the First Circuit cited as strong federalism factors.
In response to my op-ed, I received letters from gay marriage advocates protesting that a Supreme Court holding requiring reciprocity in a federalist system, stopping short of calling marriage a fundamental right, is insufficient. Others argued that if there is no state interest in non-recognition, then there is also no legitimate state interest in refusing to create same-sex marriages, making a federalism approach illogical, in effect, redundant. Yet both the First and Ninth Circuits have demonstrated that the confluence of special factors – federalism mixed with equality, rights given but confined by name to a less honored category or treated with disrespect by another governmental body – allows for judicial subtlety.
Putting before the Supreme Court a possible path to vindicating federalism, ideals of equality, and social peace surely has much to recommend it.