Another Hurdle to Marriage Equality: States Depriving Legally Married Couples of Liberty Interests

June 19, 2013

by Jeremy Leaming

If the U.S. Supreme Court avoids a sweeping opinion in Hollingsworth v. Perry, the Proposition 8 case, Indiana University Maurer School of Law Professor Steve Sanders says he hopes civil rights groups will focus on protecting the rights of the thousands of legally married same-sex couples.

During the 2013 ACS Convention, Sanders (pictured) spoke with me about Hollingsworth and U.S. v. Windsor, the case including constitutional challenges to the so-called Defense of Marriage Act.

“It really did seem like the justices, both the conservatives and the liberals, were reaching for a way to avoid having to take on the central issues in those cases -- what do the equal protection clause and the due process clauses mean for gays and lesbians, what do they mean for marriage equality, Sanders said. “This many years after Loving v. Virginia, why are we still groping around in the dark as to what the contours are of the fundamental right to marry as provided in the Constitution.”

He continued, “Assuming that the Court does not settle the meaning of marriage – same-sex marriage – for the entire country, assuming the Court doesn’t give us a substantive understanding of the meaning of equal protection or due process for same-sex couples in these cases, I have some thoughts about what the next wave of marriage equality litigation should look like.”

Sanders says there are two components to marriage equality – the right of same-sex couples to wed and the right to stay married. There are already thousands of legally married same-sex couples and many of them move to other states, of which more than 30 ban same-sex marriage thereby voiding those marriages. “I think that’s a problem, I think that’s even more offensive than being prohibited from marrying the person you love. Those people have acquired vested rights and expectation interests in the ongoing nature of their marriages.”

Sanders believes that once married those same-sex couples acquire a “liberty interest in the ongoing existence of that marriage that the state can’t take away. And if a state asserts interests in privileging heterosexual marriage those interests have to be weighed against the interests of a couple that is having something real and tangible taken away from them,” he said.

That’s a problem, which Sanders says the national civil liberties and gay rights groups should address. Watch the full interview below or visit this link.