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 Appeals involving 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.
Aside from the harms they inflict on couples, inconsistent state marriage laws also cost American businesses $1.3 billion per year, according to a study released in October by the consulting group Marsh and McLennan Companies. “As marriage confers a host of legal and social privileges,” the report explains, “the irregular landscape generates a host of administrative and compliance requirements for employers."
A patchwork of marriage laws also means a tax penalty for employers and employees in states without the freedom to marry, because the value of spousal health insurance and other benefits for an employee in a same-sex household is treated as ordinary income, triggering additional payroll and income taxes. “As many corporate leaders now view national freedom to marry as inevitable,” the Marsh and McLennan report observes, “they would prefer that this tax and compliance burden disappear sooner rather than later."
There is another important reason why marriage equality should be settled at the national level: that is where the campaign to ban it has always been fought.
Although same-sex marriage was not possible in the United States until a decade ago, affirmative and categorical prohibitions are a relatively recent phenomenon. The first state constitutional amendments banning marriage equality were not passed until 1998, when voters in Alaska and Hawaii approved measures effectively overturning state court rulings favorable to marriage equality. By 2008, only 10 years later, more than 30 states had approved such measures.
Aside from the harms they impose, I have argued that the process that was used to enact these measures raises serious constitutional concerns. It is fanciful to believe that these laws were the products of carefully considered, historically validated, independent policy decisions by each state, and thus worthy of deference as a matter of federalism. For the most part these laws were, in fact, products of a determined, nationwide blitzkrieg by religious conservative activists and Republican operatives. In the 2004 elections, President George W. Bush’s strategist Karl Rove helped oversee efforts that saw 11 anti-marriage equality measures approved in one swoop. James Dobson, founder of the once-powerful group Focus on the Family, called the nationwide fight against gay marriage “our D-Day, or Gettysburg or Stalingrad.”
The campaign was one of classic backlash: it sought to exploit short-term public passions and prejudices to slam the door on marriage equality just as a national debate was starting to emerge on the issue. As CNN’s report the day after the 2004 elections described it, “Six months after gay and lesbian couples won the right to marry in Massachusetts, opponents of same-sex marriage struck back” with amendments in 11 states “codifying marriage as an exclusively heterosexual institution.”
Experience demonstrates that when Americans learn more about gay people and their relationships, they become more likely to support marriage equality. Even while marriage equality opponents were still enjoying success at the voting booth, attitudes were evolving: between 1998 and 2009, the average vote against mini-DOMAs in statewide referenda increased from 31 percent to 46 percent.
If the remaining marriage bans took the form of ordinary statutes that could be revisited by legislatures in light of the growing majority support for same-sex marriage, there might be less reason for the Supreme Court to act right now. But all 15 remaining bans are in the form of state constitutional amendments, which are much harder to undo because they typically require legislative supermajorities, votes in multiple legislative sessions, and/or statewide voter referenda.
This emphasis on constitutional amendments also was a deliberate strategy pursued at the national level by anti-gay-marriage activists. The goal was not merely to enact laws that appealed to lawmakers and voters at the time, but to place the question of same-sex marriage beyond democratic debate and the ordinary lawmaking process – that is, persuading a simple majority of your elected representatives, the way most laws are made or repealed – in as many states as possible, for as long as possible. The spirit of these efforts was captured by a Georgia Republican politician who urged his state to adopt a constitutional amendment because it would “set in stone that marriage in this country is a union between one man and one woman. The laws of man did not create marriage; the laws of man should not alter marriage.”
The campaign against same-sex marriage has seen its fortunes dramatically reversed in the past few years. Many Americans who once opposed gay marriage have, with better information and greater reflection, changed their minds. It is an important principle of the Supreme Court's equality jurisprudence that courts should not intervene in such matters too hastily, because “the Constitution presumes that even improvident decisions” by lawmakers or voters can “eventually be rectified by the democratic processes.” But in the 15 states where anti-equality laws remain, they are embedded in state constitutions, and the ordinary democratic lawmaking process cannot address them.
And so the time has come for the Supreme Court to step in. The campaign against marriage equality was mapped and executed at the national level, and it continues to impose harms and indignities on individuals and businesses that reverberate across state boundaries. The validity of such laws should be weighed and ruled upon by the justices whose responsibility it is to interpret and apply our highest national law, the Constitution.