Millennia of Marriage, Part III

Justices Roberts, Kennedy, Ginsburg, Breyer, and Sotomayor
at oral arguments April 28, 2015
photo from here

Did so very much really go on during last week’s SCOTUS oral arguments?

We may not know right away. But possibly the most important case before the Court this year is Obergefell v. Hodges, on the definition of marriage. So we're giving it a careful look.

In two parts we covered Question 1, with Part I looking at the point that for millennia marriage has been fundamentally the joining of a man and woman, including in cultures where there was no animus toward homosexuals, so there are other rational purposes for man-woman marriage.

Part II covered several other points, and the defense. One of the main questions was, what is the justification for changing the definition to include same-sex couples but to then deny other variations? And a big takeaway of the day was that religious people could lose significant freedom to believe in the sacred nature of real marriage, and business people could be coerced to provide services against their beliefs.

In Part III we’re moving on to Question 2. Just as a reminder, here are the two questions, sometimes referred to as the marriage question and the recognition question:

Question 1: Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

Question 2: Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex that was legally licensed and performed in another state?

So, Question 2 is asked to consider what happens if Question 1 is answered no; states are not required by the 14^th Amendment to change the definition of marriage to include people of the same sex. In other words, if the states win on question 1, and keep their original definitions, then what? That assumption that the defense has won on Question 1 is important, and the plaintiffs’ counsel had difficulty grasping it.

The first few minutes reveal the basic problem. The plaintiffs’ counsel for this question is Douglas Hallward-Driemeier. (I'll mostly refer to him as counsel, because of the length of that name.) 

MR HALLWARD-DRIEMEIER: A State should not be allowed to effectively dissolve that marriage without a sufficiently important justification to do so….

JUSTICE ALITO: I was somewhat surprised by the arguments you made in your brief because they are largely a repetition of the arguments that we just heard with respect to Question 1. I thought the point of Question 2 was whether there would be an obligation to recognize a same-sex marriage entered into in another State where that is lawful even if the State itself, constitutionally, does not recognize same-sex marriage. I thought that's the question in Question 2.

That’s the first reminder of the assumption with this question. Notice that counsel makes the extraordinary claim that non-recognition equals dissolution of a relationship.

MR. HALLWARD-DRIEMEIER: …This Court's decisions establish that there is not only a right to be married, but a right to remain married; that there is a protected liberty interest in the status of one's marriage once it has been established under law.

The justices pretty much ignore that claim and continue dealing with recognition. Justice Scalia compares the question to how polygamy from foreign countries is treated:

JUSTICE SCALIA: Suppose, well, let's say someone gets married in a country that permits polygamy. Does a State have to acknowledge that marriage?

The answer is no. It brings out a good point: we don’t have the institution.

MR. HALLWARD-DRIEMEIER: Well, of course, the State could assert justifications for not doing so, and I think there would be justifications…for not recognizing such….I think that the justification would be that the State doesn't have such an institution….

JUSTICE SCALIA: Well, it would be the same argument. We don't have such an institution. Our marriage in this State, which we constitutionally can have because the second question assumes that the first question comes out the way the United States does not want it to come out; the State says we only have the institution of heterosexual marriage. We don't have the institution of same-sex marriage.

There’s no refutation. And this is the second reminder that Question 2 assumes Question 1 was settled in favor of the States.

Counsel tries to explain that the difference is a mere change in gender pronouns for same-sex “marriage,” but more involved for polygamy. So Justice Alito offers another possible difference in marriage laws from state-to-state:

JUSTICE ALITO: What if it's not a plural relationship? What if one State says that individuals can marry at the age of puberty? So a 12-year-old female can marry. Would a State would another State be obligated to recognize that marriage?

MR. HALLWARD-DRIEMEIER: I think probably not.

Counsel tries to make the point that, when the state has an interest, it can decline to accept other states’ marriages, but he’s assuming everyone agrees that no such interest precludes same-sex “marriage.”

Justice Sotomayor asks about consanguinity. Most states recognize married cousins, but at least one state does not. And, while that has been historically rare, it doesn’t seem at all against the Constitution for a state to make that choice.

Then counsel gets another reminder (#3).

JUSTICE KENNEDY: But Justice Alito's question points out, the assumption of his hypothetical is, and of the way these cases are presented, is that the State does have a sufficient interest so that you need not allow the marriages in that State. So there is a sufficient interest, under our arguendo assumption here, to say that this is not a fundamental right. But then suddenly, if you're out of State it's different. Why should the State have to yield?

The answer? A state has to have a good enough reason. Counsel mischaracterizes Kentucky’s reason as wanting a higher birthrate, adding, “which I daresay is not a rational justification, much less a sufficiently important one.”

Justice Scalia clarifies Kentucky’s statement, which counsel says is nevertheless reasoning rejected in the Loving case. Which brings another reminder (#4):

JUSTICE SCALIA: But we will not have rejected it if we come out the way this question presented assumes we have come out. …Mainly, saying that it's okay for a State not to permit same-sex marriage.

Counsel tries again, but he’s equating non-recognition to dissolution again, which the justices yet again ignore, and that brings another reminder (#5):

MR. HALLWARD-DRIEMEIER: The State asserts that it has an interest in the stability that marriage provides for children. That interest does not justify extinguishing marriages that already exist.

JUSTICE GINSBURG: May we clear this one thing. If the Petitioner prevails in the first case, then the argument is moot; right?

In an attempt to show that states traditionally accept one another’s marriages, counsel lists five instances in the three states involved in the suit failed to recognize a marriage from out of state that would not have been lawful in those states—including incest, an archaic refusal to allow remarriage after divorce. I think his point is that those reasons are not valid today. He gets another reminder (#6).

CHIEF JUSTICE ROBERTS: Yes. But, again, I think you're avoiding the presumption on which we're starting, on the assumption, which is that the State's policy for refusing to support same-sex marriage is sufficiently strong, that they can, as a matter of public policy, prohibit that in their own State. And yet you're saying it's somehow so much weaker when you're talking about marriages from other States.

Counsel tries to say that the failure to recognize illegal marriages would go against long-standing tradition. But he doesn’t address the elephant-in-the-room question, so Chief Justice Roberts spells that out:

CHIEF JUSTICE ROBERTS: It certainly undermines the State interest that we would, assuming arguendo, have recognized in the first case, to say that they must welcome in their borders people who have been married elsewhere. It'd simply be a matter of time until they would, in effect, be recognizing that within the State…. Because we live in a very mobile society, and people move all the time….In other words… one State would basically set the policy for the entire nation.

That is the basic reason for asking this question. States saw it coming. They reasserted their state sovereignty by enacting Defense of Marriage laws, and then following up even more strongly places the traditional definition of marriage in their state constitution.

Next comes some discussion, for comparison, of other types of differences in marriage law. This comes to low age of marriage, and whether that would be about consent, or other interests, or how they would be handled case-by-case. And counsel says again that most of the time states accept one another’s marriages. Which brings out some of the twisted logic involved here:

CHIEF JUSTICE ROBERTS: I think your argument is pretty much the exact opposite of the argument of the Petitioners in the prior case. The argument that was presented against them is, you can't do this; we've never done this before, recognized same-sex marriage. And now you're saying, well, they can't not recognize same-sex marriages because they've never not recognized marriages before that were lawfully performed in other States….

Counsel tries claiming that marriage is a fundamental right, and it has to be accepted. That brings on another reminder (#7):

CHIEF JUSTICE ROBERTS: And maybe…I'm just repeating myself, but we only get to the second question if you've lost on that point already, if we've said States do not have to recognize same-sex marriage as a marriage. So assuming you've lost on that, I don't see how your argument gets--you can't say that they are not treating the marriage as a marriage when they don't have to do that in the first place.

It’s all so unfair, counsel bemoans. He tries to say the cases shouldn’t be decided separately, because you “would forever relegate those marriages to second class status….” Justice Scalia says, “You’re rearguing Question 1 now?” which is almost another reminder, but we won’t count it.

Again, counsel equates non-recognition with dissolution. Again it doesn’t convince.

He thinks he’ll make progress with an actual example from among the plaintiffs:

MR. HALLWARD-DRIEMEIER: Mr. Matthew Mansell and Johno Espejo married in California in 2008. In 2009, they adopted two children. Now, in reliance on the protection that is afforded by marriage, Mr. Espejo was willing to give up his job to give the primary caregiver of their children. Mr. Mansell is the primary breadwinner. His job in an international law firm was transferred from California to Tennessee, and the cost of that transfer for that job for them was the destruction of their family relationships, all that they had relied on in building their lives together. 

And in support of that, the States offer exactly nothing. There is no reason that the State needs to disregard that marriage. No reason the State needs to destroy the reliance that Mr. Espejo has had in giving up his career to look after their children.

There are several things wrong here. Most obvious should be that, if the relationship is permanent, as the couple claims, there is nothing in Tennessee law that destroys their family relationships. They are not prevented from living together; Mr. Espejo isn't forced to go to work. State law doesn’t prevent companies from offering insurance and other common spousal benefits; an international company probably would not change the insurance after such a transfer. Whatever was arranged for Social Security is unlikely to change, so that is not an issue. Tennessee doesn’t declare they are divorced when they enter the state; it declares nothing, but simply accepts that they are two people living together not recognized as a married couple.

So, what exactly destroys the family arrangement of Mr. Espejo staying home? I think the answer is, they would “feel” less connected if the state of Tennessee doesn’t recognize them. And, more importantly, Tennessee wouldn’t treat them as a married couple when they (inevitably?) divorce. Division of property would be dealt with in civil court, rather than family court.

Justice Scalia responds to the case with another reminder (#8):

JUSTICE SCALIA: It would have been the argument made with respect to the first question.

So, in summary of the plaintiffs'  (pro-same-sex “marriage” side), same-sex couples deserve to be married, even if states aren’t required to allow that (which can’t be an argument on this question), and states shouldn’t be allowed to terminate marriages without good reason (even though non-recognition is not the same as dissolving). It was pretty weak.

Now we get to defense. And here the constitutional question of the “full faith and credit” clause comes up. Justice Scalia brings it up, to get down to business. So, here is Article IV, Section 1:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.

The defense counsel for Question 2 is Joseph F. Whalen, who is, I believe, Assistant Solicitor General of the State of Tennessee. As with Question 1, defense counselor is well-prepared.

MR. WHALEN: Your Honor, this Court's cases have made clear that the Court draws a distinction between judgments between States and the laws of each State. And the reason in part that the Court's decisions have said that is that otherwise, each State would be able to essentially legislate for every other State.

So, then, the discussion must clarify definitions of public acts, records, and judicial proceedings, as opposed to laws and other things. For career justices, you think that would be almost automatic.

There’s an amusing discussion about what would happen if a state chose never to acknowledge marriages from other states. They clarify that, if the two states have the same laws, they will recognize, but if they do not agree, a state doesn’t have to recognize. Mr. Whalen references Nevada v. Hall as clarifying the issue. And he explains the underlying principle:

MR. WHALEN: I think the underlying focus is not just that there's a policy, but that there's a legitimate policy. And as this Court's questions earlier indicated, I proceed now on the assumption that the Court has decided the first question in the State's favor, and is determined that, indeed, the State's policy to maintain a traditional man-woman definition of marriage is, indeed, legitimate, and we obviously agree that it is, and the Court should so decide.

In other words, he doesn’t need a reminder about how Question 1 is assumed to be decided, when they come to this question.

JUSTICE GINSBURG: You're making a distinction between judgments--full faith and credit applies to judgments. You can't reject a judgment from a sister State because you find it offensive to your policy, but… full faith and credit has never been interpreted to apply to choice of law.

MR. WHALEN: Yes, Your Honor….And so, in in essence, by deciding whether or not to recognize another State's marriage, the State is deciding whether or not to recognize the other State's law under which that marriage was performed.

That is, in essence, what this question covers. And, the way Mr. Whalen puts it is very convincing; the law uses specific definitions of terms. There is history and precedent in how those terms are used. It’s a relatively simple question.

But Justice Ginsburg doesn’t like the simplicity. She tries to clarify a difference between licensing a marriage and recognizing a marriage.

MR. WHALEN: It goes, Your Honor, to the essence of what I think, in fact, both questions before the Court today get at. And that is that the fundamental notion of what marriage is.

He reminds the Court that the way states have historically recognized marriages from other states cannot be applied here, because the fundamental understanding of what marriage is was essentially the same before, but now marriage laws are not the same.

Mr. Whalen also successfully explains why marriage is more law than judgment:

MR. WHALEN: I think that the performing of a marriage is closer to law is because, in essence, when the marriage is performed, all the rights that flow from that State's laws evolve to that couple. And it's different than judgments and so does not deserve the same kind of treatment that judgments would, under the full faith and credit jurisprudence, because of the reason that this Court has drawn that distinction.

He refers, particularly for Justice Sotomayor (and kudos to him for doing so respectfully) to do some reading up on terminology, to Joseph Story's Commentaries on the Conflict of Laws.

There is a discussion of whether there is some middle ground; could a state not license a same-sex “marriage” but still not be so strongly against it that it can recognize such a thing from another state? A state could, of course, but the point is, it shouldn’t be forced to. Otherwise, people just go out of state to get “married,” and then come back to their state; the state wouldn’t have an enforceable policy.

Mr. Whalen makes a good point about who is doing what:

MR. WHALEN: The difference here, I think, is the landscape that we find ourselves in. Tennessee, Ohio, Kentucky, and other States with a traditional definition of marriage have done nothing here but stand pat. They have maintained the status quo. And yet other States have made the decision, and it certainly is their right and prerogative to do so, to expand the definition, to redefine the definition. And then to suggest that other States that have done nothing but stand pat now must recognize those marriages imposes a substantial burden on the State's ability to self-govern…. It would allow one State initially literally one State, and now, a minority of States, to legislate fundamental State concern about marriage for every other State quite literally. That's an enormous imposition and an intrusion upon the State's ability to decide for itself important public policy questions, and to maintain, particularly when you're talking about recognition.

He gives an example of the type of public policy that would be affected. Parenting, in Tennessee has always been gender based, because of man-woman marriage. A child can’t have two fathers or two mothers, for example. Removing gender terms would affect many aspects of public policy. Why should a state be forced to make such a drastic change, just because some other state chooses to?

If you have read this far, congratulations. This three-part series has probably been longer than anything written on the oral arguments other than the transcript. I’ve gone through this exercise to thoroughly understand, myself. And also to have a good record of what went on, and what it meant.

I don’t know how the Court will rule by the end of June. If they go by the Constitution, the law, the will of the people, and common sense, they will sustain the right of states to define marriage as it always has—a bonding of a man and a woman. But if they listen to the gay mafia, the media pressure, and the whining about “fairness”—that all have no place in ruling on what the law is—then we could lose some significant freedoms. Eventually that could include the ability to write a blog like this without it erroneously being deemed hate speech.

I’m praying particularly for Justice Kennedy. The family, which is the basic unit of civilization, is balanced on the knife edge of his personal understanding of the law. We’re in a precarious place indeed.