By Mae Kuykendall, Professor of Law, Michigan State University, and Director of the Legal E-Marriage Project
The prospects for the Supreme Court to issue a ruling affecting the marriage rights of same-sex couples seem to be accelera
ting. At the forefront are three distinct contexts for litigation: whether states can be required to authorize same-sex marriage, whether the federal government can deny state-created same-sex marriages federal recognition, and whether states can be required to recognize valid same-sex marriages performed in other states. Two U.S. circuit courts, the Ninth and the First, have issued opinions that treat with skepticism the governmental interest in blocking gay marriage. Both Courts proceeded with the caution required by Circuit Courts, which must follow Supreme Court precedent. For that reason, both courts avoided ruling that same-sex marriage is a fundamental right, and also avoided holding that gay men or lesbians are entitled to special judicial solicitude to protect them from unfavorable legislation.
The Ninth Circuit’s conclusion limited the ability of a state to authorize a legal status with rights just like marriage, but withhold the word marriage. The Court reasoned that stripping away the word “marriage,” while leaving the rights intact, has no purpose except inflicting second-class status on gay couples.
In addressing the state’s obligations to authorize marriages of residents, the California case has no direct concern with federalism. The primary concern is the local marriage law of California.
In the First Circuit opinion, there is a subtle yet powerful convergence of federalism principles and equality principles. The First Circuit held unconstitutional a provision of federal law, Section 3 of the Defense of Marriage Act (DOMA), which defines the word marriage, for all purposes of the U.S. code, as the union of one man and one woman. Significantly, the First Circuit held that the law violated both federalism rules and principles of equality.