April DeBoer and Jayne Rowse have lived together for ten years, own a home together, and have three children. Laws in Michigan, where they live, prevented them from jointly adopting their children, so DeBoer adopted one child on her own, while Rowse adopted the other two. This also means that Rowse can’t cover DeBoer’s child on her health insurance, and vice-versa. And if one of them were to die, the other would not automatically get custody of her children. So the two women want to get married – but they can’t, because Michigan laws specifically prohibit them from doing so.
In 2013, James Obergefell married John Arthur, his partner of more than twenty years, on a tarmac at an airport in Maryland, which permits same-sex marriage, where they had flown in a medically equipped plane because Arthur was battling ALS. After Arthur died a few months later, Obergefell filed a lawsuit, seeking to be recognized as Arthur’s spouse by the state of Ohio, where the pair lived and he still lives – so that, for example, his name will appear on Arthur’s death certificate as his spouse.
Army Reserve Sergeant First Class Ijpe DeKoe married Thomas Kostura married in New York, where Kostura was living, and which permits same-sex marriage. At that time, Sgt. DeKoe was stationed at New Jersey’s Fort Dix, preparing for a deployment to Afghanistan. After Sgt. DeKoe returned from Afghanistan, the couple moved to Tennessee, where he is now stationed, but that state will not recognize the couple’s marriage. That refusal, the couple’s lawyers explain, is “particularly painful” for Sgt. DeKoe because “he is denied the very freedom, liberty, and equality that he risked his life to protect.”
Tomorrow morning at 10 a.m., Jim Obergefell, April DeBoer, Jayne Rowse, Ijpe DeKoe, and Thomas Kostura will all be at the Supreme Court for oral arguments in their challenges to the state laws that prohibit them either from marrying or from having their marriages recognized by the state where they now live. It’s not the first time that the Court has taken on the question of same-sex marriage. Two years ago, the Court heard oral arguments in a challenge to California’s ban on same-sex marriage, but it never ruled on whether the ban was constitutional. Instead, five of the nine Justices agreed that the ban’s supporters lacked a legal right (known as “standing”) to defend the prohibition on appeal when California officials had refused to do so.
On the same day that the Court issued its ruling in the California case, it also issued its opinion in a case called United States v. Windsor. The Windsor decision struck down a provision of the federal Defense of Marriage Act which defined marriage, for the purposes of over a thousand federal laws and programs, as a union between a man and a woman only. This meant, for example, that even a married same-sex couple who lived in a state – such as New York – where same-sex marriage was legal still could not file their federal tax returns as a married couple.
Justice Anthony Kennedy wrote the opinion for the Court, which was joined by the Court’s four more liberal Justices. He emphasized that the states, rather than the federal government, had traditionally regulated marriage. And if states have chosen to give same-sex couples the same dignity and protection of marriage that they give to opposite-sex couples, he reasoned, the federal government can’t say that it won’t recognize those marriages just because it doesn’t approve of them.
Even though the Court’s decision in Windsor didn’t say anything about whether states can ban same-sex marriages, lower courts around the country quickly began to rely on it to strike down bans in five different states. By the time the Justices returned from their summer recess, those states had filed briefs (known as “petitions”) asking the Court to weigh in. To the surprise of many, the Court turned them down, without any explanation. This meant not only that the bans in those five states were unenforceable, but also that similar bans in other states fell, because the lower courts’ reasoning extended to other states in the same geographic area.
In the weeks that followed, thousands of same-sex marriage ceremonies took place around the country. And in early November, the federal court that hears appeals from Tennessee, Michigan, Ohio, and Kentucky upheld those states’ same-sex marriage bans against the challenges by Obergefell, DeBoer, Rowse, DeKoe, Kostura, and others. That court held that courts should not “resolve new social issues like this one”; instead, the debate should be resolved through the democratic process.
The plaintiffs asked the Justices to review their case, which they agreed to do in mid-January. For two-and-a-half hours tomorrow, the Justices will hear oral arguments on two questions. The first is what most people refer to as the “marriage question” – whether states can ban same-sex marriage. The second is the “recognition question” – whether states like Ohio can refuse to recognize the marriages of same-sex couples, like Jim Obergefell and John Arthur, who were legally married in another state.
Most of what you need to know about the plaintiffs’ arguments can be summarized with the term that they prefer to use to describe the same-sex-marriage movement more broadly: “marriage equality.” The plaintiffs emphasize that they are not asking the Court to create a new constitutional right to same-sex marriage. Instead, they explain, the Court has long made clear that marriage is a fundamental right, and they are merely seeking equal access to that right. But even if that’s not the case, they add, the Court’s decision in the Windsor case means that states can’t exclude same-sex couples from the dignity, rights, and benefits created by marriage just because they disapprove of them. Moreover, the laws that prohibit a state from recognizing same-sex marriages that were conducted legally in another state are, the plaintiffs contend, “disrespectful” of those states and their decisions to allow same-sex couples to marry.
The plaintiffs seek to cast doubt on some of the rationales on which the states rely to defend their bans. Courts should not, they contend, simply step back and allow the democratic process to unfold. Issues like same-sex marriage, they emphasize, are precisely why we have a Constitution in the first place – because some questions are too important to be left to majority rule. Similarly, there is no reason to move cautiously on an issue like same-sex marriage; the same arguments were made and rejected in challenges to segregation and bans on interracial marriage.
During the oral arguments two years ago in the challenge to California’s ban on same-sex marriage, Justice Anthony Kennedy famously wondered out loud about the children of same-sex couples. Are they harmed by their parents’ inability to marry – or, alternatively, does having same-sex parents somehow adversely affect those couples’ children? With those comments clearly in mind, the plaintiffs and their supporters argue that children of same-sex couples are harmed if their parents aren’t married. And, they contend, there is no reason to believe either that same-sex couples aren’t good parents or that having same-sex parents has a negative effect on a child.
* * *
In my next installment, I will discuss the arguments made by the states and their supporters to defend the bans on same-sex marriage and the recognition of such marriages.