Two years ago, the Supreme Court issued its decision in United States v. Windsor. By a vote of five to four, with Justice Anthony Kennedy joining the Court’s four more liberal Justices to form a majority, the Court struck down a provision of the federal Defense of Marriage Act that defined marriage, for purposes of over a thousand federal laws and programs, as a union between a man and a woman. In Windsor, the Court made clear that it was not deciding whether states can prohibit same-sex marriages. But – as I explained in the first part of my preview of tomorrow’s oral arguments in the same-sex marriage cases – lower courts around the country quickly began to rely on the decision in Windsor to strike down state bans on same-sex marriage, and the plaintiffs have done the same in their efforts to convince the Supreme Court to rule in their favor.
So it may come as a bit of a surprise that the Court’s ruling in Windsor also plays a starring role in the arguments made by Tennessee, Michigan, Ohio, and Kentucky to defend their bans on same-sex marriage. The heart of the Court’s decision in Windsor, the states emphasize, was that the states have traditionally defined and regulated marriage. And just as the Court in Windsor determined that the Defense of Marriage Act must fall because it stood in the way of a decision by New Yorkers that same-sex couples should be treated the same as their opposite-sex counterparts, a decision by the Supreme Court for the plaintiffs would overturn a decision by the residents of these four states that marriage should be reserved for opposite-sex couples. Because each state is its own independent entity, they insist, they don’t have to allow same-sex marriages or recognize same-sex marriages that take place outside their state just because some other states have opted to do so.
The states also emphasize that the issue before the Court is not whether same-sex marriage is a good idea. The issue is who gets to decide whether same-sex marriage should be legal in a particular state, and on this question the states come down squarely on the side of the people, rather than the courts. In their view, the same-sex marriage question “has been subject to a vigorous debate that is still ongoing”: after more than seventy million people have voted on the question, eleven states have decided to allow same-sex marriages, while other states have not. If the Court were to strike down the bans at this point, the states contend, it would effectively be cutting off the debate on same-sex marriage prematurely, and saying that it “has been improper.” Quoting from a recent case in which the Supreme Court held that Michigan voters could amend the state’s constitution to prohibit the use of affirmative action by public universities there, the states reiterate that “the ‘Constitution foresees the ballot box, not the courts, as the normal instrument for resolving differences and debates.’”
The states assure the Court that – unlike Congress with the Defense of Marriage Act – they haven’t enacted these bans to discriminate against gay people. Instead, they explain, they have always defined marriage as a union between a man and a woman. And because the bans reflect the traditional idea that the real purpose of marriage is to promote the birth of children, same-sex couples don’t need to get married, because they can’t have biological children together. Pushing back against the plaintiffs’ argument that marriage is a fundamental right to which they are simply seeking equal access, the states counter that the Supreme Court has described the right to marry as a fundamental one “precisely because marriage and procreation are fundamental to the existence of society.” They add that if same-sex couples do not have a fundamental right to get married, they can’t possibly have a right to stay married when they move to another state either.
As happens so often in high-profile cases, all eyes (and ears) tomorrow will be on Justice Anthony Kennedy. The plaintiffs in this case can take some comfort in the idea that he has been the author of the Court’s opinion in three of the Court’s recent gay rights cases, leading some commentators to joke that he is the Court’s “first gay Justice.” But the states are likely encouraged by the fact that Kennedy has also been a fierce champion of states’ rights. How will he reconcile these two positions? Unlike some of the other Justices, Kennedy generally does not play “devil’s advocate” during oral arguments: if he has concerns, he voices them. So we may know much more about how Kennedy and the other Justices see this issue after the oral arguments are over tomorrow afternoon. We’ll be back then to report on them in Plain English.