Obergefell v. Hodges (14-556); Tanco v. Haslam (14-562); DeBoer v. Snyder (14-571); Bourke v. Beshear (14-574)

The Supreme Court will contemplate whether the Fourteenth Amendment requires a state to recognize lawfully licensed, out-of-state same-sex marriage. Though only one of the consolidated cases, Obergefell’s and Hodges’ arguments are representative of the general views, advocated by the parties in Tanco v. Haslam and Bourge v. Beshear, regarding their respective state’s laws that do not recognize out-of-state same-sex marriage licenses. Obergefell contends that Hodges cannot defend Ohio’s marriage-recognition laws under United States v. Windsor or under the applicable heightened scrutiny standard. However, Hodges counters that the Windsor ruling permits Ohio’s decision not to license out-of-state marriages and protects various rationales, such as local democracy.

Additionally, the Supreme Court may decide whether the Fourteenth Amendment requires states to grant same-sex marriage licenses. Deboer, Petitioner in Deboer v. Snyder (consolidated with the other cases), argues that the Constitution demands that the Court require states to license same-sex marriage under principles of due process and equal protection. In opposition, Respondent in Deboer, Richard Snyder, acting in his Official Capacity as Governor of Michigan (“Snyder”), counters that nothing in the Fourteenth Amendment’s history or plain text meaning requires states to license same-sex marriage.

ARE OHIO’S MARRIAGE RECOGNITION LAWS CONSTITUTIONAL?

Obergefell argues that Ohio’s marriage recognition laws are unconstitutional under the Supreme Court’s ruling in Windsor. Obergefell explains that the Windsor Court found the Defense of Marriage Act (“DOMA”) unconstitutional because the “design, purpose, and effect” of DOMA was to “single[] out ‘same-sex marriages made lawful by . . . the States[] for ‘restrictions and disabilities.’” Obergefell believes that the plain text of Ohio’s recognition laws similarly—and unconstitutionally—“single out” same-sex couples.

Obergefell also compares the legislative history and context behind DOMA to that of Ohio’s recognition laws. First, Obergefell underscores the various references throughout DOMA’s legislative history to protecting “traditional,” “heterosexual-only,” and “moral” marriages. Obergefell claims that the history behind the Ohio recognition laws is a near mirror image of the impermissible purpose that drove the enactment of DOMA. Ohio legislators and proponents of the recognition laws, according to Obergefell, endeavored to resist the “dangers” of recognizing “deviant relationships that seek to imitate marriage.” In terms of context, Obergefell notes that Ohio enacted its recognition laws eight years after DOMA and landmark Supreme Court decisions that legitimized same-sex relationships. Thus, Obergefell argues, the intent of Ohio lawmakers was to defy other states’ progress towards full legal protection of same-sex couples and deny same-sex couples the same legal status and dignity conferred on heterosexual couples in Ohio.

Lastly, Obergefell emphasizes that the Windsor Court struck down DOMA because the “practical effect” of that law was to disadvantage and stigmatize lawful same-sex marriages. Similar to DOMA, Obergefell contends, the Ohio recognition laws interfere with same-sex married couples’ and their families’ personal matters. For instance, Obergefell claims that the Ohio recognition laws place a severe burden on these couples to amass legal documents (such as adoption decrees) to obtain vital legal protections that married heterosexual couples automatically receive.

Hodges counters that Windsor does not require states to recognize out-of-state same-sex marriages. Hodges resists extending the Windsor Court’s interpretation of the Fifth Amendment (invalidating DOMA) to reading a “freestanding marriage-recognition right” into the Fourteenth Amendment. Such a reading, Hodges claims, violates the Full Faith and Credit Clause and the “public-policy exception,” the latter of which permits states to not “apply another State’s law in violation of its own legitimate public policy.” Hodges explains that the Fourteenth Amendment, a more “generalized” source of constitutional protection, cannot create a fundamental right (such as marriage recognition) if the Full Faith and Credit Clause (a more specific and explicit source) does not recognize such a right.

Furthermore, Hodges contends that a recognition right would “thwart the local democracies Windsor fostered.” Hodges reads the Windsor Court’s invalidation of DOMA as responding to the chilling of “democratic dialogue” that preceded new legislation, promoting the consensus of “the community’s democratic will,” and protecting the neutrality that necessarily results from democratic debate within the states.

Lastly, Hodges claims that Ohio’s tradition of not recognizing “void rather than voidable” out-of-state marriages and application of the “traditional definition” of marriage precludes a finding of unconstitutional “animus” under Windsor, where animus is defined as a “desire to harm a politically unpopular group.”

DO OHIO’S MARRIAGE RECOGNITION LAWS SATISFY THE APPLICABLE STANDARD OF REVIEW?

Obergefell argues that Ohio’s recognition laws are subject to heightened scrutiny because they discriminate based on sexual orientation and sex. According to Obergefell, Supreme Court precedent does not confer a “presumption of constitutionality” on such discrimination. A Supreme Court ruling that clarifies the necessity of heightened scrutiny, Obergefell maintains, would affirm the “equal dignity” of homosexual couples. Specifically, Obergefell argues that the Supreme Court should apply “heightened judicial suspicion” to sexual orientation classifications based on four considerations the Supreme Court uses to identify “suspect” classifications: (1) homosexuals have suffered a long “history of discrimination”; (2) sexual orientation “does not bear on an individual’s ability to perform in or contribute to society”; (3) sexual orientation is an “immutable characteristic” and “fundamental to a person’s identity”; and (4) people who identify as gay lack political power to protect themselves from discrimination despite “recent progress by gay people in challenging statutory and constitutional restrictions on marriage.”

Next, Obergefell cites United States v. Virginia for the proposition that because “all gender-based classifications today warrant heightened scrutiny,” Ohio’s recognition laws warrant heightened judicial scrutiny because they inherently classify same-sex marriages based on sex. In the alternative, Obergefell argues that Ohio’s marriage recognition laws fail to satisfy rational basis review. Specifically, Obergefell rejects the notion that “a state majority’s desire to withhold marriage rights from same-sex couples . . . ‘bear[s] a rational relationship to an independent and legitimate legislative end.’” Similarly, Obergefell refutes “irresponsible procreation” and “optimal parenting” as justifying the recognition laws.

Hodges counters that Ohio’s recognition laws do not warrant heightened scrutiny because they do not infringe a “fundamental right” or discriminate against a “suspect” class. To that end, Hodges contends that same-sex marriage fails to qualify as a fundamental right because “the right to marry has never included same-sex marriage” and “the right to marry is a privacy right, not a right to public recognition.” First, Hodges notes that the first state to permit same-sex marriage did not do so until 2004, and that the Supreme Court’s right-to-marry cases up to that point had referenced the “traditional” definition of marriage. Second, Hodges interprets a fundamental right as “a right against government, not a right to government,” or in other words, entitlement to government protection of a specific liberty interest. For purposes of comparison, Hodges notes that the Supreme Court has never created a “positive right” to privacy; a right to protection and recognition of the right to same-sex marriage, Hodges continues, may be “fundamentally important . . . without being a fundamental right.”

Hodges further contends that “sexual orientation” is not a suspect classification. The Supreme Court, Hodges argues, has never applied heightened scrutiny to laws that allegedly discriminated based on sexual orientation. Next, Hodges emphasizes that a suspect classification depends on lack of political power. Hodges claims that people who identify as gay represent the opposite of “political invisibility,” noting the depth and breadth of support for same-sex marriage from amici, lawmakers, and public policy across the country. Lastly, although Hodges concedes that gay people have suffered prejudice across the states, Hodges asserts that “there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter” and distinguishes sexual orientation from “area[s] like race or gender.”

Hodges also refutes Obergefell’s argument that Ohio’s recognition laws trigger heightened gender-discrimination scrutiny. These laws, Hodges claims, are gender neutral and Obergefell has failed to show the requisite proof that Ohio “enacted the law with discriminatory intent toward one gender.” Furthermore, Hodges argues that traditional marriage does not involve the unequal treatment of either gender.

In the context of rational-basis review, Hodges cites five purportedly rational grounds for not recognizing lawful out-of-state same-sex marriages that Ohio has decided not to license: (1) a rational state interest in in-state control over political processes within state lines; (2) preserving the “democratic choice” of the state’s legislature and citizens in deciding Ohio’s public policy as it relates to same-sex marriage; (3) discouraging individuals from evading Ohio’s marriage laws by getting married in other states and then receiving the benefit of marriage recognition after returning to Ohio; (4) the administrative benefits of uniformity in marriage licensing; and (5) allowing states to “wait and see” whether “novel changes” in other states work before being required to follow suit.

DOES THE FOURTEENTH AMENDMENT REQUIRE STATES TO GRANT SAME-SEX MARRIAGE LICENSES?

In Deboer v. Snyder, a consolidated case, Petitioner Deboer contends that the Fourteenth Amendment demands that states license same-sex marriage. In particular, Deboer maintains that marriage creates numerous societal benefits—stability to families, certainty for children, and for same-sex parents the ability to dispel thoughts that their families are “inferior” or “second tier.” Deboer thus contends that denying same-sex couples and their children these same protections is constitutionally impermissible because allowing a state to exclude same-sex couples from legally recognized marriage violates both the Due Process and Equal Protection clauses.

More specifically, regarding equal protection, Deboer maintains that laws prohibiting same-sex marriage fail under the least strict standard: rational basis.Deboer explains that this is because the reasons offered by the state in defense of such laws—including encouraging procreation and family relationships—are not rationally related to such a law, and thus are arbitrary and passed with improper purposes. Deboer further argues that any statute banning marriage between same-sex partners triggers heightened scrutiny under the Equal Protection Clause because such laws discriminate on the basis of sexual orientation. Thus, since such laws fail under rational basis, Deboer asserts that they also fail under a heightened scrutiny standard. Lastly, with regards to due process, Deboer submits that restricting the right of same-sex couples to marry violates the long-recognized, fundamental freedom to marry, which is a potential violation of substantive due process.

In opposition, however, Respondent Snyder counters that nothing in the Fourteenth Amendment’s history or plain text meaning requires states to license same-sex marriage. Snyder maintains that rather than the Court vis-à-vis the Constitution requiring states to license same-sex marriage, states—through popular vote, state constitutional amendments, or statutes—are the appropriate democratic processes for licensing same-sex marriage. To further support its contention, Snyder notes that while state and federal courts effectively allow same-sex couples to marry in thirty-seven states, only eleven states adopted Deboer’s proposed definition of marriage through legislative action or democratic vote. Snyder thus contends that the larger democratic position of the states cuts against allowing states to license same-sex marriage, and that “the process of social change cannot be short-circuited by the lower federal courts, however numerous their decisions.”

On the point of equal protection, Snyder argues that states can define marriage as between opposite-sex partners without violating equal protection. Snyder maintains that under rational basis review, a state can restrict marriage for the rational reasons, including allowing a child to be raised by a mother and father, and procreation. Though Snyder contends that such marriage laws should not trigger heightened scrutiny, Snyder argues that these laws would also survive any level of scrutiny.Snyder contends that redefining marriage will impact the stability of children growing up with a mother and father, and since redefining marriage “erodes that paradigm,” states may do so without fear of violating the Equal Protection Clause.Finally, in response to Deboer’s due process arguments, Snyder submits that “[t]here is no substantive-due-process right to a particular marriage definition.” For support, Snyder maintains that the right to marry someone of the same sex is not a “deeply rooted” right, and that the “Court has never suggested that a right to marriage requires government recognition.”