It’s been just over a month since the Supreme Court’s historic ruling in United States v. Windsor that declared Section 3 of the Defense of Marriage Act (DOMA) unconstitutional. Since then, the fight for marriage equality has moved squarely to the states. Dozens of lawsuits have popped up around the country challenging state-level “mini DOMAs” as unconstitutional violations of equal protection and due process rights. But thanks in large part to the constitutional murk created by Windsor and Hollingsworth v. Perry, the corresponding Proposition 8 decision, it’s not at all clear how these challenges will shake out in the short-term. And that’s usually a good indication the issue will find its way back before the Supreme Court.
While Windsor and Perry looked at different issues—federal powers under DOMA and California’s ban on same-sex marriage, respectively—and while the Supreme Court in either case declined to rule broadly in favor of a constitutional right to same-sex marriage, we can draw a couple of general conclusions by reading the opinions together. First, regulating marriage, same-sex or otherwise, is a matter of state law. But there are clearly constitutional problems prohibiting same-sex marriage if that prohibition is grounded in an animus toward LGBTQ individuals, which means same-sex marriage bans are suspect. The problem is, it’s just not clear exactly how suspect they are.
Now, it’s difficult to imagine a same-sex marriage ban grounded in anything other than animus, but Justice Anthony Kennedy’s reasoning in Windsor leaves open the possibility that such other things exist by refusing to clearly identify how skeptical courts should be when looking at laws that discriminate on the basis of marriage.
The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.
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In other words, Kennedy wasn’t going to judge one state’s decision to recognize same-sex marriage, because states have that right under principles of federalism. And by limiting the effect of the decision to “those lawful marriages,” he didn’t have to worry that the ruling would upend state laws that affirmatively discriminate against same-sex couples. Instead, Kennedy suggests that the effect of those bans warrants “careful consideration,” which the court saved for another day.
That day is here.
So far, a handful of lawsuits have been filed challenging same-sex marriage bans in places like Virginia, Pennsylvania, Kentucky, Arkansas, and Oklahoma. But it’s a recent decision out of Ohio that most succinctly frames the fight that lies ahead. In Obergefell v. Kasich, Federal District Judge Timothy Black enjoined the application of Ohio’s state DOMA provisions—both its statutory same-sex marriage ban and the state’s constitutional amendment banning recognition of marriages between same-sex partners—and said the state must recognize the valid marriage license an Ohio gay couple obtained in Maryland.
Saying there was “insufficient evidence of a legitimate state interest to justify this singling out of same sex married couples given the severe and irreparable harm it imposes,” Judge Black ruled the state may arguably have the power to define marriage within its boundaries, but it does not have the power to “de-legitimate” a lawful marriage from another state by not recognizing it. The court held:
Under Supreme Court jurisprudence, states are free to determine conditions for valid marriages, but these restrictions must be supported by legitimate state purposes because they infringe on important liberty interests around marriage and intimate relations. In derogation of law, the Ohio scheme has unjustifiably created two tiers of couples: (1) opposite-sex married couples legally married in other states; and (2) same-sex married couples legally married in other states. This lack of equal protection of law is fatal.
Like Windsor, the Ohio case is grounded in the injustice marriage bans create, but it ultimately dodges the constitutionality of those bans, retreating into principles of federalism to justify its ruling.
Longstanding Ohio law has been clear: a marriage solemnized outside of Ohio is valid in Ohio if it is valid where solemnized. This legal approach is firmly rooted in the longstanding legal principle of lex loci contractus—that is, the law of the place of the contracting controls. “Ohio has adopted this legal approach from its inception as a State. Thus, for example, under Ohio law, as declared by the Supreme Court of Ohio in 1958, out-of-state marriages between first cousins are recognized by Ohio, even though Ohio law does not authorize marriages between first cousins.
On the one hand, this should be reassuring. After all, the language of the opinion largely echoes the liberty themes running through Windsor and seems to question from the start the idea that any same-sex marriage ban could be grounded in a legitimate state interest. In the meantime, states like Minnesota and Rhode Island have passed marriage equality laws, and, in the court of public opinion, the issue appears largely settled. But because marriage equality is still anchored to the idea of state power instead of being purely a question of fundamental human rights, it is an invitation for a court hostile to marriage equality to find a “legitimate” reason for states to limit marriage rights. This is, after all, the current landscape in the battle over abortion rights; federal courts have come to conflicting decisions as to whether forced ultrasounds are an important component of “informed consent” and whether so-called fetal pain bans serve state interests that ultimately override the rights of pregnant people.
Does that mean the fight for marriage equality is going to turn like the fight for reproductive rights? At the moment, and broadly speaking, yes. A patchwork of state-wide bans on same-sex marriage, the open question of whether the right to marry includes the right to form a same-sex union, and the additional complication of private benefits tied to marital status guarantee a continued flood of federal litigation to sort these issues out—the start of which we’re just beginning to see. This means that ultimately it will be the Roberts Court that determines the boundaries of those rights.