The federal court decision last week ordering Ohio to honor a same-sex marriage that had been performed in Maryland was a legal landmark – the first federal decision to hold that, even if a state is hostile toward creating same-sex marriages, it may still be required to recognize such unions from other states. The opinion relied on a reading of the Supreme Court’s Defense of Marriage Act (DOMA) decision that was probably too simplistic, and it failed to provide a robust and persuasive constitutional explanation for the distinction between recognizing existing marriages and actually creating new ones. (Later in this post, I’ll suggest a better analysis.) Still, the decision signals the opening of a new front in marriage equality litigation, a development I have previously suggested is overdue.
The case involved two Cincinnati men, James Obergefell and John Arthur. Arthur is dying of Lou Gehrig’s Disease, and the couple wanted his Ohio death certificate to list his status as “married,” with Obergefell as his surviving spouse. In early July the couple flew to Maryland in a specially equipped medical jet, were married in the plane as it sat on a tarmac, and returned home the same day.
In granting a temporary restraining order requiring Ohio authorities to recognize the marriage, Judge Timothy Black of the Southern District of Ohio reasoned as follows. Ohio marriage law has long incorporated a strong “place-of-celebration” rule – that is, the state’s courts have given effect to certain marriages (such as those between first cousins or minors) that were legal in the state where they were solemnized but which could not have been obtained in Ohio. But Ohio, through an amendment to its state constitution in 2004, makes a glaring exception to this rule: it will not recognize same-sex marriages lawfully obtained in other states. This discrimination, Judge Black said, violates the 14th Amendment’s Equal Protection Clause.
In treating existing same-sex marriages differently than it treats opposite-sex marriages, Judge Black said, Ohio runs afoul of the Supreme Court’s decision in United States v. Windsor. Windsor struck down Section 3 of DOMA, which prohibited federal recognition of valid same-sex marriages. In essence, Judge Black said, Ohio’s refusal to recognize Obergefell and Arthur’s marriage from Maryland suffered from the same constitutional defect as DOMA: its “purpose and practical effect” were “to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of” the marrying state.
This is surely a just and humane outcome. But the opinion – perhaps because it arose in the context of a TRO, rather than full adjudication on the merits – suffers from a number of problems. I’ll discuss them briefly, then offer my suggestions for a better approach in future litigation.
First, the opinion seems conclusory and lacking in rigor. It relies on a few soundbites fromWindsor (taken out of the federalism context Justice Kennedy was careful to provide), along with an analogy to a much different and more far-reaching Colorado anti-gay amendment that the Supreme Court struck down in Romer v. Evans. These weaknesses make Judge Black’s opinion a target for states-rights conservatives, who are fighting to restrict Windsor’s significance as much as possible.
Second, the opinion fails to mention Section 2 of DOMA, which was not at issue in Windsor and where Congress invoked its power under the Constitution’s Full Faith and Credit Clause to authorize states like Ohio to ignore same-sex marriages from other jurisdictions. In requiring Ohio to recognize Obergefell and Arthur’s marriage, did Judge Black mean to call into question the constitutionality of Section 2 as well? He doesn’t say, but that’s the necessary logic of his holding.
But the biggest problem, I think, is Judge Black’s use of equal protection as the basis for the decision. Equal protection seems like a natural doctrine for this case, but it does not satisfactorily account for the difference between a constitutional right to remain married (which is what this case was about) versus a right to get married (which is a different and bigger question). If Judge Black is correct that it violates equal protection for Ohio to refuse to apply its place-of-celebration rule to out-of-state same-sex marriages, then it is hard to see why it isn’t just as much of a problem for Ohio to refuse to license same-sex marriages on equal terms with heterosexual unions. After all, both policies impose “disadvantage” and a “separate status” based on anti-gay animus. Stigma is stigma.
As I wrote recently in the Michigan Law Review, until the Supreme Court resolves the question of gay marriage for the whole country, there are compelling reasons to distinguish between a right to get married and a separate right to remain married. Same-sex marriage is now legal in 13 states, and that number will keep growing up to a point, but a hard core of red states will remain opposed. Requiring State A to recognize a same-sex marriage celebrated by sister State B is less of an imposition on State A’s sovereignty, and thus a more modest judicial step, than forcing it to create new marriages it finds objectionable. Whatever interests State A may have in privileging and incentivizing heterosexual marriage, those interests are much weaker vis-à-vis the interests of a gay or lesbian couple who are already married and simply wish to stay that way.
In contrast to Judge Black, however, I would locate constitutional protection for an existing marriage in substantive and procedural due process, not equal protection. Given marriage’s enormous legal, social, and practical significance, an existing union should be understood to implicate its own unique liberty interest under the Due Process Clause, separate from whatever “right to marry” that clause may provide. It is bad to be denied the right to marry the person you choose, but it seems like a much deeper injury to your liberty, privacy and autonomy to have an existing marriage effectively taken away from you by a state that refuses to recognize it.
As I explain at greater length in the Michigan article, the due process analysis is strongest for same-sex couples who legally marry where they actually live, then later migrate to a hostile state like Ohio. (Remember that Obergefell and Arthur were not Marylanders who had relocated to Ohio; their quick sojourn was essentially an act of civil disobedience against Ohio’s refusal to give them a marriage license.) True migratory couples have acquired vested interests in their marriages on which they should be able to rely; their long-termfinancial, medical, and personal plans, not to mention property rights and even legal relationships with their children, should not be thrown into turmoil. Due process captures these interests in a way equal protection does not. Our legal tradition – always a starting point for due process analysis – favors stability and predictability in legal relationships, vindication of reasonable expectations, and protecting the individual from coercive state power. Moreover, the Supreme Court has long invoked the Due Process Clause for the principle that a state may not interfere with extant legal family relationships without strong justification.
This is simply horizontal federalism, the principle that one state may not treat a marriage license from a co-equal sovereign like some piece of worthless foreign currency. It is no more than the place-of-celebration rule, but with teeth. Putting the principle in the Constitution is necessary to prevent states like Ohio from carving out an unjustified gay/lesbian exception to a longstanding and common-sense default rule of interstate marriage recognition. Allowing state courts to take cognizance of same-sex marriages, regardless of their state’s policy on marriage creation, also would give hope to couples who seek divorce but currently find themselves “stuck in a marriage they cannot dissolve.”
However it is resolved in further proceedings, this Ohio casereminds us that, although the Supreme Court has not yet reached the issue of state anti-gay marriage laws, the lower courts – where Justice Sonia Sotomayor said the issue should “perk” for a while longer– must do the necessary work of refining constitutional doctrine and applying it to new situations.