Next on the agenda for marriage equality litigators

Steve Sanders is associate professor at the Maurer School of Law, and an affiliated faculty member in political science and gender studies, at Indiana University Bloomington. He tweets @SteveSSanders.

Todays decisions were not the end of federal litigation on marriage equality, they were really only the beginning. And so, in light of what the Court called our nations evolving understanding of the meaning of equality, how should the next wave of marriage litigation be constitutionally theorized and argued?

There are two major marriage-equality problems yet to be dealt with: (1) couples who are still barred from marrying in 36 mini-DOMA states where marriage discrimination remains embedded in statutes or constitutional amendments, and (2) couples who are already legally married, but whose marriages are denied recognition in those mini-DOMA states. I focus here on the second issue.

Ostensibly, the Court today did not deal with either of these problems. Windsor struck down DOMAs Section 3, which barred federal recognition of extant same-sex marriages, but the Court said nothing about Section 2, which purports to authorize states to deny recognition to each others marriages. And Hollingsworth, while effectively vindicating District Judge Vaughn Walkers masterful opinion striking down Californias Proposition 8, said nothing of substance about equality or liberty.

But as Tom Goldstein noted this morning on the live blog, it is essential to listen not only to the words of the Courts decisions, but to the music as well. And both of todays decisions, in their own ways, reflect the rapid evolution on same-sex marriage we have seen in the White House, the judiciary, the states, among members of Congress, and in public attitudes. Those who believe the limitation of lawful marriage to heterosexual couples is an unjust exclusion, Windsor teaches, are entitled to have their constitutional arguments heard seriously and with respect. Just as Lawrence v. Texas held that same-sex intimate relationships were entitled to constitutional dignity, Windsor holds that same-sex marriages implicate an essential part of the liberty protected by the Constitutions guarantees of due process and equal protection.

In striking down DOMAs Section 3, Windsor addressed the problem of same-sex couples who are married for the purpose of state law but unmarried for the purpose of federal law. But it did not touch what the Court more than 70 years ago (in the context of divorce) called the most perplexing and distressing complication[] in the domestic relations of . . . citizens: the idea that a person could be married in one state and unmarried in another. This is a complication that more than 30 states, backed up by DOMAs Section 2, still inflict on same-sex couples. Their mini-DOMAs are understood to deny legal recognition to the marriages of same-sex couples who migrate from states where such marriages are perfectly legal; some expressly purport to void such marriages. Such laws transform married gays and lesbians into legal strangers, effectively divorcing them against their will by operation of law.

This is a serious problem of both constitutional law and federalism, and it deserves a central place in the landscape of marriage equality litigation going forward. It has been a sleeper issue throughout the marriage equality debate, and I predict it is about to emerge front and center.

More than 114,000 same-sex couples have legally married in the United States, according to UCLA demographer Gary Gates, a number that is growing every week. Extrapolating from census data on Americans state-to-state migration, we can assume that several thousand of these couples change states every year for employment, education, family, or personal reasons. Non-recognition laws threaten these couples with serious harm. If two persons who were once married in Iowa or New York are suddenly rendered legal strangers in Indiana or Michigan, their property rights are potentially altered, spouses disinherited, children put at risk, and financial, medical, and personal plans thrown into turmoil. This is an array of problems and indignities that no rational legal system should tolerate.

Americas state marriage patchwork also means that, for married gay couples now living in mini-DOMA states, Windsor simply creates new legal dilemmas. As William Baude noted perceptively last year, DOMAs demise will lead to chaos because [t]he federal government has no system for deciding what states law governs a marriage the state that performed the marriage, or the state where the couple currently lives.

On this blog and in a recent article for the Michigan Law Review, I have argued that a person who legally marries in her home state, then pulls up stakes and moves to another state, acquires a significant liberty interest under the 14th Amendments Due Process Clause in the ongoing existence of her marriage. This liberty interest creates a right of marriage recognition that is conceptually and doctrinally distinguishable from any constitutional right to marry in the first instance. It is a neutral principle, grounded in core Due Process Clause values: protection of normative expectations about marital and family privacy (if a state cant take away your child without due process, how can it take away your spouse?); respect for established legal and social practices (state-to-state marriage recognition is a longstanding default rule); and rejection of the idea that a state can unilaterally sever a legal family relationship without important, proven justifications.

Did the Court today provide any support for my argument? To be sure, Justice Kennedys Windsor opinion is solicitous toward the prerogative of states to define marriage for themselves. But his analysis is entirely in the context of vertical federalism: federal law, the Court said, may not injure same-sex couples whom a state has seen fit to protect with the status of marriage. The key here, I think, is that many of the Courts rationales for condemning DOMA also implicate horizontal federalism: the obligations states owe one another as coequal sovereigns.

If, as the Court says, it is intolerable to have two contradictory marriage regimes within the same State, then why is it more rational to have two contradictory marriage regimes in the same country especially when the practical effect is to disrupt stability in legal relationships, endanger property and parental rights, and impede same-sex couples right to travel and take up residence in a new state? Just like Section 3 of DOMA, these conflicting state regimes place[] same-sex couples in an unstable position of being in a second-tier marriage. The Court acknowledges that the incidents, benefits, and obligations of marriage may vary from one State to the next. But it does not expressly or even implicitly say it makes sense for the very status of marriage to vary from state to state.

Seeking to limit Windsors impact, the Chief Justice in dissent refers obliquely to concerns for state diversity and sovereignty in marriage law. These concerns will surely affect the shape and pace of litigation in new states where gays and lesbians may seek a federal right to marry. But they are no reason to turn a blind eye to tens of thousands of couples who risk having their extant marriages nullified simply because they cross a state line. Like the majoritys opinion, the due process liberty argument I have advanced for interstate marriage recognition is confined to lawful marriages that already exist.

Given that most day-to-day benefits and obligations of marriage are governed by state, not federal law, it is a bigger problem for most couples when a state denies the existence of their marriage than when Washington does so. As much or more so than federal non-recognition, the crazy quilt of same-sex marriage recognition (to quote the Windsor majority again) demean[s] same-sex couples, divests them of the duties and responsibilities that are an essential part of married life, humiliates their children, and signals that their marriage is less worthy than the marriages of others. Such interference with the equal dignity of same-sex marriages forces couples to have their lives burdened, by reason of government decree, in visible and public ways.

Moveover, like DOMAs Section 3, the discrimination legitimized by Section 2 and practiced by the majority of states is of an unusual character. All states currently recognize the vast majority of marriages celebrated in other states, not as a constitutional requirement (the conventional wisdom is that the Full Faith and Credit Clause doesnt apply here) but as a matter of comity and common sense. Accordingly, individual states have long recognized marriages common-law, first-cousin, even uncle-niece that they themselves would not have created. Mini-DOMAs simply carve out a gay/lesbian exception to this longstanding rule.

Whatever federalism-based respect we must continue giving states in deciding whether to create same-sex marriages, these states have no humane, reasonable, or even coherent interest in demanding the continued power to sunder the unions of couples who are already married. If, by creating a same-sex marriage, a state invokes its historic and essential authority to confer dignity and status of immense import, as the Court told us today, then requiring sister states to recognize that marriage is the price of living in a federal system of equal sovereigns.