The following contribution to our same-sex marriage symposium is written by Steve Sanders, who teaches Constitutional Litigation, Sexuality and the Law, and Family Law at the University of Michigan Law School. He formerly practiced as a member of the Supreme Court and appellate group at Mayer Brown LLP, and represented twenty-three law and history professors as amici in Varnum v. Brien, which legalized same-sex marriage in Iowa.
If there is one thing worse than being denied the right to marry the person you love, it is winning that right in one state, then having your marriage taken away from you by another state. As same-sex marriage heads toward a possible date with the Supreme Court, attorneys on both sides are arguing about the constitutional right to get married. But for the nearly fifty thousand same-sex couples who have been wed since 2004, the fight is also about their right to remain married.
Imagine that Helen and Jenny reside and marry in Iowa. Iowa is among the six states, plus the District of Columbia, where same-sex marriage is now legal. Consider also that between two and three percent of Americans move to a different state each year, meaning we can expect that at least one thousand married same-sex couples may do so. And so imagine that Helen and Jenny pull up stakes and move to Indiana. Perhaps Helen's employer transfers her to Indianapolis, or Jenny's elderly mom in Fort Wayne needs her close by.
Helen and Jenny now have a problem. Indiana law purports to declare their marriage "void." Indiana is among forty-three states with statutes or constitutional amendments banning same-sex marriage (typically called mini defense of marriage acts, or "mini-DOMAs"). Most mini-DOMAs not only forbid creation of same-sex marriages, but they also deny legal effect to the perfectly valid marriages of same-sex couples who migrate from other states, some in express statutory language and others implicitly. In effect, these non-recognition provisions purport to divorce same-sex couples by operation of law, rendering them legal strangers to each other.
In our roiling national debate over same-sex marriage, we tend to forget that tens of thousands of couples already have such marriages, but face the prospect of losing them if they cross the wrong state border to accept a new job, pursue a degree, or attend to family responsibilities. Justice O'Connor once observed, "It is difficult to imagine a right more essential to the Nation as a whole than the right to establish residence in a new State." But for married same-sex couples, that right is circumscribed and uncertain.
And so, if it is a close call, here is one more reason for the Justices to grant cert. and vindicate Judge Vaughn Walker's decision in Perry v. Schwarzenegger: to protect the integrity of thousands of existing marriages, and the dignity of thousands of gays and lesbians in those marriages, against the coercive power of states that believe heteronormativity is so important a policy that it justifies not only banning new same-sex marriages, but breaking up existing ones.
The Court declared marriage a fundamental right in 1967 in Loving v. Virginia. That iconic case inspires contemporary marriage equality advocates, but we typically forget that (as my colleague Mae Kuykendall recently reminded me) Loving was not a right-to-marry case, it was a recognition case. In 1958, Mildred Jeter, an African-American woman, and Richard Loving, a white man, married in Washington, D.C., then returned to Virginia and established their home. Virginia not only refused to recognize interracial marriages, it criminalized them. The Lovings were prosecuted and pled guilty. The judge suspended their sentence on the condition they leave the state. The Lovings' fight to return home to Virginia took them all the way to the Supreme Court.
Although at least some married gay couples surely have been adversely affected by mini-DOMAs already, gay/lesbian advocacy groups have avoided the issue because it would involve making federal constitutional arguments to a predominantly conservative federal judiciary. Instead, groups like Lambda Legal and the ACLU have pursued a strategy to win marriage state by state. In bringing the Perry case, David Boies and Ted Olson broke the taboo on enlisting the Constitution in the struggle for marriage equality. Going forward, they should remember that they also represent tens of thousands of couples whose existing marriages need the same certainty and dignity that other marriages receive.
Most lawyers and legal scholars would say that couples like my hypothetical Helen and Jenny have a conflict of laws problem: they are collateral damage in a scheme of family law localism that says every state gets to control the definition of marriage within its own borders. In a forthcoming paper, I maintain that these couples actually have a constitutional problem, one that requires a constitutional solution. The mini-DOMAs invade what should be regarded as a substantive due process liberty interest in the ongoing existence of a marriage. This right of marriage recognition would be conceptually and doctrinally distinguishable from the contested constitutional right to marry.
As reasonable as this idea may seem, it swims against the tide of established wisdom. After all, states have always had the power to regulate existing marriages. I think "regulation" falls a bit short, though, in describing laws that purport to void your marriage simply because the state disapproves of it.
Many people assume that marriage recognition is required by the Full Faith and Credit Clause, but the consensus among conflicts scholars is to the contrary. States recognize each other's marriages as a voluntary matter of comity, because the law generally values stability in legal relationships and protection of justified expectations. Mini-DOMAs carve out an immense categorical exception to this rule for gays and lesbians.
As a result, property rights are potentially altered, spouses disinherited, offspring put at risk, and financial, medical, and personal plans thrown into turmoil. Should the couple choose to exit the relationship someday, they may not have access to legal divorce. And these are just the practical consequences, to say nothing of the affronts to dignity and equality. Andrew Koppelman has written that such laws could plague same-sex couples with "constant, confusing changes in their legal status," because "their marriage would cease (or, perhaps, become dormant; it is unclear whether it should spring back to life when they, or one of them, moves back to the state in which they were married)."
This is, objectively, madness.
Should same-sex marriage reach the Court, advocates will argue that marriage equality is required under both due process and equal protection doctrines. The case is even more compelling for a right to remain married. The due process arguments are especially important. First, a state that voids an existing marriage through a mini-DOMA defies any notion of procedural due process. (A state cannot terminate your parental rights over your child without a hearing and evidence, but mini-DOMA states think they can terminate your marriage with neither.) Second, a mini-DOMA state also interferes with reasonable expectations, marital and family privacy, and the established legal and social practice of interstate marriage transportability. All these considerations place the issue in the heartland of Due Process Clause jurisprudence. Mini-DOMAs force us to think seriously about what it means to declare the existence, as the Court has done in several substantive due process cases (most recently, Lawrence v. Texas), of a "realm of personal liberty which the government may not enter."
Today's state of affairs for same-sex marriages is oddly similar to what the Court confronted almost seventy years ago with divorce. In Williams v. North Carolina, it held that once a divorce is effective in one state, it must get full faith and credit in every other state. In doing so, the Court overturned an older decision that involved a man who had been validly divorced in one state but was still legally married in another "“ essentially the same absurd situation same-sex couples face today. The Williams Court recognized, as Ann Laquer Estin has written, that "the old federalism, which gave states broad control over the norms of family law, did not work. The conflict among the states over divorce was understood as a political problem, but political solutions were not forthcoming, and the Supreme Court was eventually unwilling to allow the policies of a few states to block a more workable national compromise."
Of course, mini-DOMAs exist in more than "a few" states "“ forty-three, to be exact "“ though a slim majority of Americans now favor equal marriage rights. As same-sex marriage moves closer toward the Supreme Court, I find much to agree with in the cautious approach counseled last week by Bill Eskridge: because the issue currently "divides the country both intensely and evenly," perhaps it "ought not be resolved one way or the other until public preferences become more settled." But as we debate strategy and consequences, we should also remember that, as Justice Jackson once observed, "If there is one thing that people are entitled to expect from their lawmakers, it is rules of law that will enable individuals to tell whether they are married and, if so, to whom."