Same-sex Marriage Preview II

By Tom Watts*

This is the second in a series of blog posts previewing some of the conceptual questions that may appear in the same-sex marriage oral arguments on Tuesday. Part I is here.

In the previous post, I discussed the prospect of the Supreme Court deciding that a state same-sex marriage ban was a sexual orientation classification on the face of the law. In this post, I’ll consider the route to concluding that the bans should receive scrutiny as sexual orientation classifications even though they do not explicitly classify by sexual orientation. As I’ll explain, if this topic comes up, it may be one way of determining where the Justices stand on the questions presented in the cases.

Ordinarily, the question that courts ask about a law that doesn’t classify in its text, but that has some kind of disparate impact on one group over another, is whether the law was enacted with a discriminatory purpose. Here, the fact that gays and lesbians are barred from marrying a partner of their choice (but straight people aren’t) isn’t enough unless the Court finds that these laws were enacted with gay people in mind. Of course, most of the specific provisions at issue actually were; after Hawaii appeared on the verge of recognizing same-sex marriage in the 1990’s, there was a wave of statutory enactments (including DOMA) to bar same-sex marriage in most states, and after Massachusetts did recognize same-sex marriage, there was another wave of state constitutional enactments. The legislative history of these enactments is clear enough about the anti-gay intentions of the laws.

But there’s a wrinkle here. The Supreme Court didn’t explicitly take up the question of whether Ohio, Michigan, Kentucky, and Tennessee’s bans were unconstitutional. It took the question, “Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?” For the answer to be “Yes,” it seems as though the Court would have to decide that all existing (and perhaps any conceivable) legal barriers to same-sex marriage are unconstitutional. Even if the court strikes down the statutory and constitutional provision barring same-sex marriage, common-law rules that existed before those provisions still barred recognition of same-sex marriage. Did those laws develop with discriminatory purposes? Common-law principles barring same-sex marriage date at least as far back as medieval England, prior to the invention of the concept of sexual orientation in the nineteenth century (perhaps due to an increasing medicalization of the understanding of sexuality). The rules can’t have developed with discriminatory purpose if no one conceived of the group as existing at the time.

There’s a possible way out: the very first time that the Supreme Court found a violation of the Equal Protection Clause in a law that did not include a facial race classification, it did so when the disparate impact was truly egregious. A San Francisco city ordinance forbade the operation of a laundry in a wooden building without a permit. Every permit application from a Chinese person was denied, and nearly every permit application from a white person was granted. There was no need to find intent in the enactment of the law because the administration of the law was so clearly discriminatory; hence, the law was struck down. Here, too, there may be no need to find express homophobia in the common-law development of principles that forbade same-sex marriage, because a same-sex marriage ban has an equally extreme disparate impact: every marriage license application from a gay person is denied, and almost every application from a straight person is granted.

The case is not perfectly analogous: the wooden-laundry law gave officials discretion which they exercised in a discriminatory manner, whereas there is no comparable discretion in the marriage bans. If anything, though, this makes the marriage bans even more unconstitutional. At least San Francisco could have implemented the law in a way that was not discriminatory; there is no such option for the marriage bans.

Is the Supreme Court likely to raise this point? Probably not in the “licenses” question, quoted above, for two reasons. The first reason is the criminal law. Enacting a law that turns out later to have a large disparate impact can’t always be unconstitutional, or else nearly all of the criminal law would be unconstitutional, because nearly all of it has a large disparate impact on African Americans (consider Blewett). There is a way out: the Supreme Court could hold that an unconstitutional disparate impact is one that is absolute (a license or permit is either granted or not) and nearly uniform in its disparity between the two groups (basically every member of one group gets the license or permit, and basically every member the other doesn’t). This would save the criminal law. However, to my knowledge, no one has made this argument.

The second reason this point is unlikely to arise in the “licenses” question is the opinion below. Judge Sutton, who wrote the opinion in the court from which this case is being appealed, raised the point of the common-law nonrecognition of same-sex marriage. However, he did so to argue that the constitutional bans were not motivated by animus, which is clearly wrong. The legislative history of these enactments, beginning in 2004, shows plenty of explicit anti-gay sentiment.

If the Court does start raising questions about the common-law history of marriage, it may be because the Court is interested in the second question it granted: “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?” Many states, such as New York, recognize marriages performed out-of-state without determining whether those marriages could have been performed in-state. As a result, a ban on recognizing out-of-state same-sex marriages would be contrary to New York’s usual approach. (New York enacted same-sex marriage legislatively, so this is no longer an issue in New York specifically, but in any other state with a similar approach, this point remains true.)

In contrast, according to Ohio’s brief (pp. 32-33), Ohio recognizes out-of-state marriages that would have been valid or voidable under Ohio law, but not marriages that are void under Ohio law. As a result, not recognizing same-sex marriages in Ohio is consistent with Ohio’s usual approach: such marriages are void under Ohio law anyway, and Ohio doesn’t recognize any out-of-state marriages that are void under Ohio law.

The upshot of all this is that if the Court were to answer (in the first question) that a state does not have to grant marriage licenses, it could answer (in the second question) that those states that have very strong comity principles, as New York does, are required to recognize out-of-state same-sex marriages, but those that take Ohio’s approach are not required to do so.

It will be worth listening closely to the Supreme Court’s oral argument to determine whether the Justices seem interested in any of these issues, because it may give an indication where they are on the two questions.

For more detail on several of the points in this post, see Zachary Robert Herz, The Marrying Kind. The author thanks Zach for his help in developing much of the content in this post. Of course, any errors should be attributed to the author alone.

* Tom Watts is a fourth-year JD/MPP student at HLS and HKS and is the Executive Online Editor of HLPR.