By Professor Marcia McCormick
On April 28, the Supreme Court heard oral arguments in Obergefell v. Hodges, an unassuming title for a pretty momentous set of consolidated cases. In those cases, the Court has agreed to consider two questions:
1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
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?
At the arguments, it was clear that these questions cannot really be easily separated. If marriage has to be extended to same sex couples under the constitution, then the second question need never be answered. And if the second question is answered, yes – if states have to recognize marriages performed out of state – eventually there will be no real way for states to limit the definition of marriage.
The issue of same sex marriage has had a relatively quick and bumpy ride through the political landscape. The issue was not central for LGBTQ activists early on, and some early victories created a backlash in federal and state law, including state constitutional amendments in nearly half of the states. However, the combination of grassroots and higher level political efforts and litigation in recent years has brought us to our current place. Opinions polls show that somewhere around 60 percent of people in the U.S. support same sex marriage and fewer than 40 percent oppose it. The trend is in favor of support, as well.
Echoes of these trends could be heard in the justices’ questions during the oral argument, as could echoes of the minority view. The questions focused primarily on what exactly the institution of marriage was, what its purpose was, how much power states had to define it, whether legislatures or courts had a role in defining it and whether equal access to marriage was so bound up in liberty and equality that the constitution protects it. Questions from the male justices, Chief Justice Roberts, Justices Kennedy, Alito, Scalia and Breyer, were focused on the history of marriage as an institution and cross-cultural practices. Those questions often posited a monolithic institution never available to same sex couples.
That view of history is incomplete in a number of respects, though. The history of marriage cannot be separated from the legal rules surrounding property and inheritance. It was not universally monogamous, nor available from a civil authority separate from religion. Marriage was a way to create alliances between families, solidify power within families and protect and enhance wealth. More importantly, marriage has not been static. Colonies in North America, as part of the effort to create freedom of religion and separation of church and the state, began creating a system of civil marriage – marriage created by the state, separate from any religion, and it has changed significantly since that time.
Even then, marriage was an inherently gendered institution that set rules for management, transfer, and inheritance of property from one man to another. It was not a union of two equals or an expression of romantic love. That evolutionary step did not really begin until the mid-19th century and was not complete in the United States until 1981, when the Supreme Court held that state laws which gave husbands sole control of marital property were unconstitutional. For as long as marriage has existed, same sex relationships have existed, sometimes supported or at least tolerated by various cultures.
Questions and comments by the female justices, Justice Ginsburg, Sotomayor and Kagan, focused on this gendered history and the evolution of marriage in the United States, and, along with questions from Justices Breyer, Kennedy and Roberts, focused on the rationale behind denying equal access to marriage. They seemed skeptical that a rational distinction could be drawn between same sex couples and families, and opposite sex couples and families.
It is difficult to know what the justices think from the questions they ask – they do not always express their own premises in those questions, but at least sometimes ask friendly questions designed to elicit an answer that will help persuade their colleagues who have different premises or frame the way that issue might be discussed in an opinion. As a result, it is difficult to predict what the Court will do. Legal analysts can easily be bound up in some of the technical arguments about whether marriage is a liberty interest, whether limiting marriage to opposite sex couples discriminates on the basis of sex or sexual orientation and whether we can disentangle religion from the mix. One thing is nearly certain, though. The Court will issue its decision before the end of June, and whatever is decided will have important impacts on the legal institution of marriage.