On April 28, the U.S. Supreme Court will hear arguments in Obergefell v. Hodges, a consolidated case involving plaintiffs from Ohio, Michigan, Kentucky and Tennessee. They seek a ruling that U.S. states are obligated to perform same-sex marriages and to recognize same-sex marriages performed in other states.
Fordham Law Professors Elizabeth Cooper and Joseph Landau are closely monitoring the case.
Elizabeth Cooper: Although this case is being discussed as whether same-sex couples have a right to marry, it really is an issue that applies to everyone. This is really a case about dignity and respect. The Court gets to decide whether gay individuals who wish to marry have the same fundamental right to marry that opposite-sex couples have.
The Court long has stated that marriage is a fundamental right. Now is their opportunity to make clear that that fundamental right applies to same-sex couples as well. Their prior precedent in Windsor indicates that they are getting ready to take that step, but we won’t really know until the end of June.
Joseph Landau: In more than 60 cases since the 2013 Windsor ruling, judges in state and federal court have invalidated state law same-sex marriage bans on constitutional grounds. About 40 of those pro-marriage decisions have been issued by the federal courts, either at the trial court or appellate court level, and just under 20 have been issued in state court.
A handful of those cases have gone the other way. The most prominent among them, the Sixth Circuit decision — the case we’re talking about today, currently on appeal in the Supreme Court — which upheld bans in four states: Kentucky, Michigan, Ohio, and Tennessee.
The Obergefell and Windsor cases both involve lead plaintiffs who experienced the death of long-time partners they had legally married — and who then found their marriages were not fully, legally recognized.
Joseph Landau: Jim Obergefell and John Arthur were living in Ohio, and they were together for 20 years. They decided to get married a couple of weeks after the 2013 Windsor decision. John had Lou Gehrig’s Disease and was close to death. The couple couldn’t marry in Ohio, but they were able to raise money on the Internet to fly on a medically equipped jet to Maryland, where they were able to get married.
They got married in Maryland and then they returned back home to Ohio, but when they returned there, they were told that the state wouldn’t recognize their marriage. They brought suit in federal court, and Arthur died three months later. And their case, which is now before the Supreme Court, raises the question whether the State of Ohio will be required to list Obergefell as the surviving spouse on Arthur’s death certificate.
Elizabeth Cooper: Edie Windsor met the love of her life, Thea Spyer, in the 1960s. And in 1967, Thea asked Edie to marry her — never dreaming that they actually might one day be able to get married validly under the law. As Thea’s health declined in the early 2000s, the couple flew to Canada in order to get married.
When they came home, not long later, Thea passed away, and Edie was faced with a tax bill of over $300,000. When she tried to fight it, saying she shouldn’t have to pay the tax because she was married to Thea, the U.S. government disagreed and charged her the tax. The Windsor case, which was decided in June 2013, said that the law that the IRS had relied on was unconstitutional — with Justice Kennedy saying that there was no legitimate purpose in treating marriage between same-sex couples and opposite-sex couples any differently.
As the Obergefell case has moved through the courts, the state of Ohio has argued that its bans on the licensing and recognition of same-sex marriage were approved through “democratic processes” in 2004 — specifically, a voter-approved ballot initiative and legislation.
But Professor Cooper says neither of these processes preclude judicial review.
Elizabeth Cooper: We live in a complex democracy where we have a wonderful system of checks and balances. Those checks and balances exist among the executive branch — the president, for example — and Congress, the legislative branch, and the judiciary. We also have balances, if you will, between the federal government and the state government. States have enormous freedom to legislate however they wish, but there are limits. This case is about whether the actions in Ohio that prohibit same-sex couples from marrying violate the federal Constitution. That federal Constitution — our federal Constitution — is the final word.
The state of Ohio has also argued that the Court has no role in forcing a state to recognize the plaintiff’s out-of-state marriage because, “Our Constitution establishes local debate and consensus as the usual method for social change.”
Professor Landau questions that contention.
Joseph Landau: Well I think that’s mistaken for a number of reasons. First, our courts are guardians of our individual rights, and courts have a fundamental role to play in our constitutional democracy. The United States Constitution assigns the federal courts with an obligation to uphold the rights of the minority when they are under threat from the majority — especially here, when those rights have been deemed to be fundamental by the Supreme Court.
The Constitution also requires that states accord full faith and credit to the acts, records, and judgments that are rendered in sister states. Without those kinds of assurances and protections, we cannot have a truly federalist system of 50 states; we can’t have the assurance that the decisions that are rendered in one state will be portable in another state. It would interfere with commerce. It would interfere with the right to travel.
So the full faith and credit clause is there to make sure that we can have decisional law in one state that we can have faith that all other states will have to honor as well.
And the federal court there, too, has an essential role to play to make sure that constitutional provision is fully enforced.
In early April, the New York Times reported that no major law firms are willing to represent opponents of same-sex marriage, unlike in other historically important civil rights cases that have been argued before the Supreme Court.
But Cooper and Landau caution that report does not have any bearing on how the Court may rule in Obergefell.
Elizabeth Cooper: The Court has taken its time in choosing which case it wanted to rule on to determine whether same-sex couples have a constitutional right to marry. We’re not talking here about creating a new right. We’re talking about allowing same-sex couples to enter into a fundamental, legally recognized relationship that many of us view as a regular part of society.
It’s interesting how quickly public feelings about whether same-sex couples should be permitted to marry has changed in recent years. So right now, you have close to 60% of the populace supporting that right. There are 37 states plus the District of Columbia that permit same-sex couples to marry — not only permit, but require, that same-sex couples be permitted to be marry.
Joseph Landau: In addition, numerous couples have gotten married in the wake of those lower-court decisions that we were talking about earlier. Keep in mind that the Supreme Court affirmatively chose not to review those cases on appeal last fall in 2014.
Does the Supreme Court now want to impose the earlier status quo, prior to all of those federal court decisions that have been issued since the 2013 Windsor decision?
If it does so, it’s going to be upending the reliance interests and the expectations on the part of all of those couples who’ve gotten married in the wake of all of those lower federal court rulings, and who are now considered married, both in the eyes of their own states and in the eyes of the federal government. Changing that status quo could lead to all kinds of follow-on litigation.
So whatever the justices think about the merits question: Is there a fundamental right to marry for same-sex couples? Do prohibitions on the right of same-sex couples to marry violate the equal protection clause of the Constitution? Whatever they think about those questions — and they’re obviously very important questions — the justices still might be very hesitant to uproot those expectations and those decisions and cause yet a second shift, an additional shift, in the status quo.
Elizabeth Cooper: The Court may have wanted to avoid ruling on this issue, but once the Sixth Circuit ruled in opposition to all of the other circuit courts on this issue, the Court really had no choice. All of the steps it has taken so far would indicate that they are going to say that same-sex couples must be permitted to marry. But the reasoning they use to get there is really up for grabs.
To learn more about these professors and their scholarship, visit their faculty web pages: Elizabeth Cooper and Joseph Landau.