Twenty-two months ago, the Supreme Court — perhaps not fully realizing that it was doing so — set off a constitutional revolution.  In a decision that spoke somewhat tentatively about an “evolving understanding of the meaning of equality,” the Court in United States v. Windsor saw in that understanding a deep even if new respect in America for the dignity of same-sex couples who choose to marry.

What followed from that, with astonishing speed, was that the list of states where such marriages became legal expanded from twelve to thirty-six.   Lower federal courts, in particular, led the way.  On Tuesday, at a two-and-a-half-hour hearing, the Supreme Court confronts a simple question: did those courts go astray, and misread what Windsor really meant?

A cabinet shelf full of about one hundred and fifty briefs introduced the Justices to that question from many angles.  But the actual outcome of the case known as Obergefell v. Hodges could well depend upon how the Court answers three core constitutional issues.  Each by itself, in fact, could be decisive: Who decides?  What right is at issue? What is the constitutional test?

Who decides?

The Supreme Court for a long time — indeed, since 1803 — has claimed for itself the ultimate authority to decide what the Constitution means.  But the Court alone does not shape constitutional understanding, and many other actors in public and private life play key roles: politicians, legislators, voters, among others.

Still, same-sex marriage lawsuits that continue to unfold, reaching every state, have pushed the courts into the forefront of that constitutional controversy.

One answer that actually came from one key court was that this is not, after all, an issue for judges to decide.  The U.S. Court of Appeals for the Sixth Circuit — the court that decided the very case that the Supreme Court is now reviewing — declared that the issue belonged with state legislatures or a state’s voters.

This is not a matter of power but of discretion.  There is no doubt that the gay and lesbian couples and individuals who sued to challenge state bans on their desire to marry had a right to sue.  Specific state laws or constitutional amendments excluded them from access to marriage, or denied official recognition if they already were married, and the couples reacted by claiming that this denied them their rights under the Fourteenth Amendment.

Some relied upon the Amendment’s guarantee of “equal protection of the laws,” and some also relied upon the Amendment’s guarantee of “due process” — that is, the guarantee against arbitrary denial of a public benefit; there are obviously many benefits that go with marriage.

Those lawsuits, though, were aimed at the cultural institution of marriage whose norm for ages had been that only a man and a woman could enter it.  Whether to change that, the Sixth Circuit said, was a matter of such social profundity that it ought to be decided by the people or their elected representatives.  Gays and lesbians, it said, would actually gain a more enduring right if they did it through that process, working it out with their fellow citizens.

The Supreme Court no doubt will hear a defense of that point on Tuesday.  It will be asked by lawyers for four states to uphold the Sixth Circuit decision and, if it does that, the same-sex marriage lawsuits would either be dismissed by the Justices or would be sent back to lower courts to do so.

In that event, the federal constitutional issue would be resolved by default; the Court would not say what the Fourteenth Amendment meant on the issue.

This might be an option for the Court if, after hearing the four cases on Tuesday and deliberating in coming weeks, the Justices find themselves unable to reach a decision sufficiently clear-cut that they would be prepared, as an institution, to lay it upon the country.

Gays and lesbians could continue to try to gain access to marriage by pressing lawsuits in state courts, under state constitutions.  And they could turn, as the Sixth Circuit suggested, to state legislatures or to ballot measure campaigns.  No doubt there would be more victories in those arenas, but there would be no nationwide right of equal access to marriage.

As a result, America would not know, for perhaps several years, just where such marriages would be allowed.

There is also a possibility, suggested in one of the legal briefs before the Court, that the Justices could conclude that the question is a proper one under the Constitution, but that it should be decided by state courts, one state at a time.  The theory behind that suggestion is that marriage is so fundamentally an issue of state choice that each state should be given the opportunity to defend its own laws in its own courts.

State courts do share with federal courts the equal authority to decide questions under the national Constitution, so gay and lesbian couples could go forward in state courts as they already have done, with a good deal of success.

If the Supreme Court were to take that option, it would simply find that lower federal courts had no jurisdiction to hear and decide challenges to state bans.  Again, the result would be to dismiss the pending cases, to let them begin anew in state courts.

Of course, appeals to the Supreme Court could follow after state supreme courts resolved a state case.  Losers in the highest state court have a right to ask the Supreme Court to review the result.

What right is at issue?

Assuming that the Supreme Court moved forward to a decision on the constitutional controversy, it probably must choose between two contrasting interpretations of what right is at stake.  It would be harder for gays and lesbians to win — though not entirely beyond their reach — if one of those versions were accepted by the Justices.

Gay and lesbian couples insist that they are not asking the Court to declare, for the first time ever, that gays and lesbians have a right to marry — that is, a new and very specific right to marry the person of one’s choice, when that person is of the same sex.

Rather, they contend that there is an existing right to marry, well established in every state, and they simply want equal access to it.  It is their exclusion from a right now open to opposite-sex couples that they argue denies them legal equality and due process under the Fourteenth Amendment.

There are two variations of that claim.

One is that the Fourteenth Amendment forbids denial of equal legal rights based upon a constitutionally forbidden category.  In this situation, that category is sexual orientation or, the intimate attraction to a person of the same sex.

The other is that the Supreme Court has declared that marriage is a fundamental right under the Constitution, and that the right may not arbitrarily be denied to a couple that — except for their same-sex characteristic — would be eligible to enter it.

Many lawyers for states, in defense of their bans, have made a contrasting argument.  They contend that gays and lesbians are, in fact, asking the Court to create a brand-new constitutional right to marry a person of the same sex.

The Court, of course, very seldom establishes a previously non-existent constitutional right.  It can extend an existing right to new groups — for example, give women legal equality — but it does so by finding that the underlying constitutional concept has simply evolved.  The recognition of a new right is simply an interpretative alteration, not a new creation, done from scratch.

Even less often, lawyers for the states have contended, does the Supreme Court recognize a new “fundamental right.”  To exist at that most important level, there must be a history behind the right, something that is so evidently a part of constitutional understanding that it is only natural to formally acknowledge it.

In the same-sex marriage cases, then, gay and lesbian couples would confront a major obstacle to winning their case if they had to persuade the Court to create a new right of gay marriage, as such, and, especially, if they had to make the case that such a right is fundamental in the constitutional sense.

The Court almost certainly cannot avoid choosing between these contrasting versions of the right to marry: each is fully debated in the written arguments in the four cases, and the choice is thus clear.

Of course, the Court is examining two constitutional claims to a right to be treated equality: equal access to marriage in the first instance for unwed gay and lesbian couples (an issue in two of the cases before the Justices), and equal recognition of same-sex marriages already performed in another state (at issue in one of the marriage cases and in the two cases that deal only with recognition).

If the couples win on the first point, then equality would be mandated nationwide, and recognition would seem to lose its separate significance.  It is possible that the Court, if it were to examine the recognition issue wholly apart from its obvious link to marriage access, might find it fairly easy to assure equality in recognition.  That, in effect, is what it required the federal government to do when, in the Windsor decision, it opened federal marital benefits to already married same-sex couples as a matter of constitutional equality.

Much of the written briefing in the four cases seems to proceed on the assumption that the two rights being claimed are not distinct, but closely intetwined.  It is difficult, indeed, to imagine how the Court might rule in favor of one but not the other.

What is the constitutional test?

When the Supreme Court confronts a claim that a constitutional right has been violated, and the right has been identified, it ordinarily has to decide what standard to use in judging whether a law or government policy violates that right.

There are various levels of such a test, ranging from the easiest to meet to the hardest.  When the right involves a claim of equality, a law or policy that is said to violate that right is judged by one of three tests: the “rational basis” test, which is very easy to meet, and can be satisfied if there is any reasonable explanation for its passage; the “heightened scrutiny” test, which is not as easy to meet because a law or policy must be shown to have served an important public objective, and the “strict scrutiny” test, which is so demanding that a policy can almost never survive it; a policy put to that test must serve a compelling government interest, and be narrowly crafted to serve that interest.  Race discrimination, for example, is always judged by that tough standard.

It is one of the truly strange facts about the Supreme Court’s modern history of ruling on gay rights that it has never settled on which of those three tests, or which variation of one of them, it actually applies in judging a given law or policy.  It has sometimes hinted that it is using some more demanding version of the low-level rational basis test, but has not said so explicitly.

In the string of lower-court rulings that favored same-sex marriage in the wake of the United States v. Windsor decision, some have struck down state bans under rational basis, some under heightened scrutiny, and some under strict scrutiny.

If states have to satisfy only rational basis as they seek to justify marriage or marriage-recognition bans, they have a better chance of salvaging those bans — especially since the man-woman definition of marriage is of such long historic standing.

Many judges, to be sure, have found that the states’ attempted reasoning behind their bans is so lacking in social science or other justifications that the bans cannot pass even the threshold rational basis standard.  Some courts have suggested that the justifications put forth are so thin that the bans can be understood as simply the result of moral hostility to homosexuality.

The chances of gays and lesbians winning their challenge, of course, would be somewhat enhanced if the Court were to apply heightened scrutiny.  That is the constitutional test that the Obama administration urged the Court to adopt in the Windsor case, when the Justices struck down a key part of the federal Defense of Marriage Act.   The Court, however, did not say what test it was using when it reached that result.

The Obama administration is back, in the new cases, urging again that the Justices apply heightened scrutiny.  Some of the other briefs supporting the same-sex couples also do so.

Given that the Court has come a long way in advancing gay rights without establishing a constitutional standard, it would be no surprise if the Court were able to avoid doing so again this time.  In the Windsor case, the main opinion did not seem overly skeptical about the utility of a heightened scrutiny standard, but it did suggest that it might be untested in the gay rights context.


A note to readers:

As Tuesday’s hearing unfolds, questions and comments by the Justices that touch on or probe the three decisive issues may provide some clues of how the cases may go: Who decides, what right is at issue, and what is the constitutional test?

The audiotapes of the hearing — first, a ninety-minute tape on the marriage issue, followed shortly by a one-hour tape on the marriage-recognition issue — will be publicly broadcast in full and will be streamed on the Court’s website.




Posted in Obergefell v. Hodges, Analysis, Featured, Merits Cases, Same-Sex Marriage, Same-Sex Marriage Post-Windsor

Recommended Citation: Lyle Denniston, Same-sex marriage: The decisive questions, SCOTUSblog (Apr. 26, 2015, 3:22 PM),