by Steve Sanders, Associate Professor of Law, Maurer School of Law, Indiana University Bloomington.
* This piece originally appeared on The Huffington Post.
The Supreme Court has been reluctant to jump into the question of same-sex marriage, preferring to let the issue percolate through state-by-state litigation in the lower federal courts. But the time has come for the justices to come out of hiding. The denial of marriage equality is a national problem, not a state-level problem, and it requires a national resolution that only our nation’s constitutional court can provide.
At the moment, 35 states allow marriage equality, while 15 forbid it. The anti-equality states not only refuse to allow same-sex marriages to be licensed and celebrated; 14 of them also refuse to recognize marriages from sister states where such unions are perfectly legal. Petitions from cases in four of those states – Kentucky, Michigan, Ohio, and Tennessee – will be considered by the justices at their next private conference this coming Friday.
One reason marriage equality is a national issue is that our current patchwork of marriage laws imposes unreasonable, indeed absurd, burdens on same-sex couples’ security in their marriages and their freedom to move from state to state. A married gay couple from a pro-equality state can relocate for job, education or family reasons to an anti-equality state – as long as they’re willing to give up their marriage, and perhaps even their property and parental rights. A rational legal regime cannot tolerate this state of affairs.
In a 2012 article in the Michigan Law Review, I first proposed that the Constitution provides not only a right to get married, but a right to remain married. Multiple federal court decisions, including one from the 10th Circuit U.S. Court of Appealsinvolving Utah’s marriage laws, have since endorsed this principle. There is also an argument to be made that denial of interstate marriage recognition offends the Constitution's Full Faith and Credit Clause.