Private: Is a Right-to-Remain-Married Compromise Taking Shape at the Supreme Court?

by Steve Sanders, who teaches constitutional law, constitutional litigation and family law at the Maurer School of Law, Indiana University Bloomington.   

When the Supreme Court decided Friday to hear four marriage equality cases, it ordered briefing on two separate questions: “1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?” and “2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?”  (Emphases added.) 

By splitting the question in this way, the Court appears to be saying that marriage recognition is conceptually and doctrinally distinguishable from marriage creation. This may seem like hair-splitting – I’ll explain why it’s definitely not – but first, forgive me for indulging in a bit of “feeling vindicated” (is there a Facebook status for that?). 

I’ve been flogging this idea – that in addition to a right to marry, there is a constitutional right to remain married, and that non-recognition of valid same-sex marriages should be seen as a distinct Due Process Clause problem – since as far back as 2008, in essays for this blog (here and here) and others (here, here, here), and in a 2012 article in the Michigan Law Review, which I titled “The Constitutional Right to (Keep Your) Same-Sex Marriage.”  (I followed up with an article last year arguing it was also time to revisit the conventional wisdom that the Full Faith and Credit Clause does not apply to interstate marriage recognition.)

My suggestion at the time -- before anyone thought the whole issue would be at the Supreme Court this quickly -- was that nullification of existing marriages was a greater harm and more urgent question that federal courts could address to pave the way for a later right to marry.

Initial reaction among some of my academic colleagues was skeptical. When I work-shopped the “right to remain married” paper at the University of Chicago, even the students piled on about why they didn’t buy it.  Andy Koppelman, my commentator that day, said that state courts applying choice-of-law doctrine, not federal courts doing constitutional law, should handle the recognition problem.  A couple of my old professors at Michigan Law suggested my argument was “advocacy.”

But scholars hope to advance the law, and signs started to appear that that was happening.  The district judge in the Obergefell case (the name the Supreme Court’s opinion likely will carry, since it’s first in the cert grant) graciously credited my work in holding that Ohio had to recognize the marriage of two men who had been married in Maryland.  (Something I had written on this blog about his earlier opinion in the same case may or may not have played some role.)  Several more courts also dealt with recognition of existing marriages as a distinct issue, and the Michigan article has been cited in a number of merits and amicus briefs. Last June, the Tenth Circuit, in striking down Utah’s marriage ban, commented that “we agree with the multiple district courts that have held that the fundamental right to marry necessarily includes the right to remain married.”  

So now, the right to remain married is before the Supreme Court, and speculation has begun about what the Court might be up to.

There are good reasons why Justice Kennedy (who is solicitous toward gay rights but also centrally concerned with federalism) and Chief Justice Roberts (who may be thinking about how history will judge him) might see the possibility for some creative middle ground: “yes” on the right to remain married, but “question-reserved-for-another-day” on the right to get married.  (It’s impossible to believe Kennedy would join an opinion that outright rejected the right to marry.) 

It could be a grand gay rights/federalism compromise: the Court would appear to show restraint and respect for states where anti-marriage-equality sentiment still dies hard, while admonishing these states that they may not treat valid marriage licenses from their sister states like pieces of worthless foreign currency. It would instantly give honor and effect to many currently non-recognized marriages, and dramatically mitigate the harms and indignities that result when couples’ marital status is changing and uncertain. 

Marriage equality has reached the Court at light speed, but the justices (and public opinion) still remain divided. Law students learn that Brown v. Board of Education and Loving v. Virginia were preceded by cases that took smaller steps and paved the way for the bigger decisions. A limited, one-step-at-a-time approach, if done right, might at least mute the inevitable eruptions from Justices Scalia and Alito toward any decision that takes away states’ rights to continue disparaging gay relationships. In a year or two, the Court could come back and finally drag Alabama, Mississippi and Texas into line. Not unlike Roberts’ opinion upholding Obamacare on taxing-power rather than the commerce clause grounds, such a result could be seen as statesmanlike, even Solomonic. 

One seemingly picayune but important question: should the right to remain married apply to couples who evade their own states’ laws (Ohio couple flies to Maryland, takes vows, wants Ohio to consider them married), or only to couples who got married in an equality state, then only later pulled up stakes and moved to a hostile state? 

I explain in the Michigan article why my 14th Amendment argument only works for the latter couple. They have a Due Process Clause liberty interest, based on reliance and justified expectations, in the ongoing existence of a marriage they obtained in good faith. But American common law has always looked disfavorably on couples who skirted the laws of their own domicile, deeming them not entitled to the usual “place of celebration” rule governing marriage validity. 

The importance of this distinction, however, seems to be breaking down, especially as the federal government has begun fully recognizing all same-sex marriages, wherever the marriage was obtained or the couple is domiciled. And remember, Loving involved a couple who had evaded the marriage law of their domicile.

Cases in which the Court granted cert Friday involve a mix of both kinds of couples. Tanco v. Haslam, from Tennessee, deals most squarely with the scenario I’ve written about. As the couples’ cert petition says upfront, “For petitioners, the price of moving to Tennessee was loss of their legal status as married couples and as family members…. Tennessee’s laws treat petitioners’ marriages as legal nullities, depriving petitioners and their children of all the protections, obligations, benefits, and security that Tennessee readily guarantees to other married couples.”

Of course, anything less than a complete right-to-marry victory would be a huge disappointment to legal progressives, the strategists and litigators who brought the issue this far, and the thousands of couples who still want to marry in 14 states but can’t. And rightfully so.  Elsewhere, I have argued that the Court should resolve the right to marry at the national level, and that the mini-DOMA bans were infected with unconstitutional animus. Justices Kennedy and Roberts probably don’t think it’s an “undue burden” for women seeking abortions to have to drive hundreds of miles, but that doesn’t mean they should extend the principle to couples seeking to marry. 

Most of us are confident that marriage equality will be the rule in all 50 states in a short time.  But the Supreme Court can be full of surprises, and right now, the justices obviously see not one, but two, distinct questions in how the Constitution should regard gays, lesbians and marriage.

Constitutional Interpretation