The Supreme Court will likely render its opinion in Obergefell v. Hodges on Monday, June 29. The Court will answer two questions, commonly referred to as the marriage question and the recognition question: (1) does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? and (2) does 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?
There are a few possible outcomes (remember, the Sixth Circuit opinion at issue upheld state bans on same sex marriage, so, a same sex marriage victory would require this opinion be overturned):
- The Court could rule 5:4 with Justice Kennedy writing the opinion overturning the Sixth Circuit decision on traditional Fourteenth Amendment equal protection/due process grounds. In order to avoid a rational basis level of review (rational basis review is the easiest standard to meet, and extreme deference is given to state interests), the Court would need to create a new suspect class based on sexual orientation, thereby requiring a compelling state interest. Courts like to limit their decisions whenever possible, though, as we saw in Windsor. And creating a new suspect class where doing so is not necessary to the desired outcome would be surprising, I don’t think the Court will go this far.
- The Court could also rule 5:4 in favor of same sex marriage but use an equal protection/due process analysis as it relates to fundamental rights, as the Tenth Circuit did in Kitchen v. Herbert. It could expand the definition of marriage to include same sex marriage as a fundamental right, which would require a state to provide a compelling state interest. In oral argument, the states offered a compelling state interest of encouraging a biological connection between a parent and a child. Rational, yes. Compelling, probably not. Interestingly (ok, to law nerds), the U.S. Solicitor General specifically did not advance the fundamental rights argument. While I see this as the most likely outcome, at least 3 liberal justices were extremely uncomfortable during oral argument with the idea of changing the millennial-old definition of marriage.
- Or, the Court could reverse the Sixth Circuit’s decision on a 6:3 vote, with Chief Justice Roberts, on a gender discrimination rationale. As Chief Justice Roberts asked during oral argument, “I’m not sure it’s necessary to get into sexual orientation to resolve this case,” he said. “I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?” Applying existing gender discrimination law could be more appealing than creating a new suspect class. However, as Judge Kelly noted in his dissent in Kitchen, “[d]isparate treatment of men and women as a class is an essential element of an equal protection, gender discrimination claim.” Same sex marriage, though, places equivalent burdens on men and women – men can’t marry men, and women can’t marry women.
- Or, the Court could compromise and uphold the Sixth Circuit’s decision 5:4 with Justice Kennedy on a states rights/federalism analysis, but also decide that a state must recognize a marriage legally solemnized in another state. Justice Ginsburg’s first question in oral argument was, “What do you do with Windsor’s stress on federal government deference to states on domestic relations issues?” And Justice Breyer asked repeatedly why a state shouldn’t be allowed to “wait and see whether in fact doing so [allowing same sex marriages] is or is not harmful to marriage.” Such a ruling would effectively legalize same sex marriage everywhere, while still allowing states to adopt it by popular vote. A couple in a state that hasn’t legalized same sex marriage could go to another state (cue popularity of destination weddings), get married, and return home and have their marriage legally recognized. Only 11 states thus far have adopted same sex marriage by vote. But as Chief Justice Roberts pointed out, it only took Maine 3 years to reverse its ban.
- Finally, the Court could answer no to both questions, uphold a state’s right to ban same sex marriage, and uphold a state’s right to not recognize another state’s lawful marriage. This is not a very likely option.
Advocates for same sex marriage will view nothing but #1 as a victory. Advocates for states rights will view nothing but #5 as a victory. The general population, though, will likely be happy with anything in between.