On Tuesday, April 28, the U.S. Supreme Court heard oral arguments in Obergefell v. Hodges, a case that will decide whether the U.S. constitution requires states to license marriages between two people of the same sex and/or requires states to recognize same-sex marriages performed out-of-state. To answer these questions, the court must first come to a consensus on the legal definition of marriage. Several possible definitions were proposed during the lengthy colloquy that included comments on the history of marriage, the relationship of marriage to parenting and Plato’s approval of same-sex relationships. A review of these definitions puts the argument in context and gives insight into the court’s decision-making process.
1) Marriage is the bond between one man and one woman. This traditional view was posited by Chief Justice Roberts when he stated, “you're not seeking to join the institution, you're seeking to change what the institution is. The fundamental core of the institution is the opposite sex relationship and you want to introduce into it a same-sex relationship. Obviously, if you succeed, that core definition will no longer be operable.”
Confirmation of this definition would neither prohibit nor require same-sex marriage, but would permit the individual states to decide.
2) Marriage is a fundamental liberty right of consenting adults. This definition is asserted by same-sex couples who argue they are entitled to legally recognized marriages. The attorney for these couples stated that even the traditional definition of marriage has evolved. While historically, in various cultures, wives were once the legal property of, and then subservient to, their husbands, married couples are now equal partners in the eyes of our laws. Justice Alito’s suggestion that this definition opens the constitutional door to communal marriages was not soundly refuted.
Recognition of marriage as a fundamental liberty right regardless of the sexual identify of the couples ends the legal controversy and would require state recognition of same-sex marriage throughout the nation. Once the one man/one woman definition of marriage is refuted, however, proponents of other alternative marital arrangements will seek legal status.
3) Marriage is a Sacrament. Justice Scalia hinted at this definition when he inquired whether legitimizing same-sex marriage would force clergy to preside over same-sex marriages. The Solicitor General, arguing for the United States, correctly asserted that the First Amendment prohibits such a possibility. Moreover, the states that currently permit same-sex marriage grant religious exemptions for clergy and houses of worship. States may not be required to do so, however, and could deny discriminating clergy the authority to solemnize state-licensed marriages. The First Amendment rights of wedding caterers and related businesses are yet to be determined.
While many, perhaps even an overwhelming majority, of people on both sides of the same-sex marriage controversy may agree marriage is a sacred bond, the First Amendment’s establishment clause prohibits the government from adopting this definition for state-licensed marriages.
4) Marriage is a state-conferred benefit that, when granted, must be granted equally. This is the position of the Obama administration, which does not assert that non-traditional marriage is a fundamental liberty interest. Nevertheless, when Justice Alito asked whether this analysis requires states to grant marital benefits to friends or even siblings who cohabitate, the Solicitor General replied, “marriage is something more fundamental than that. It is an enduring bond between two [otherwise unrelated] people.” Nevertheless, denying marital benefits to friends or siblings of the same sex would violate the equal protection clause, particularly if people with same-sex orientation are a protected class. Chief Justice Roberts, who is no doubt reluctant to extend heightened constitutional protection to any group, pondered whether the case could be decided based on gender rather than sexual orientation. “I’m not sure it’s necessary to get into sexual orientation to resolve this case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t.”
Granting equal protection to same-sex couples might force some states that strongly object to same-sex marriage to simply stop issuing marriage licenses. This would lead to the privatization of marriage in those states, but probably would not satisfy opponents of same-sex marriage because the states would, undoubtedly, continue to grant marital benefits to couples wed in private, including religious, ceremonies.
5) Marriage is a state-conferred benefit that must be granted rationally, or marriage is the government’s support for the “linkage between kids and their biological mom and dad.” Rationality is the minimum standard for all governmental action. Laws that have no rational relationship to a legitimate state purpose are unconstitutional under the equal protection clause. The states that oppose same-sex marriage rationalize their legislation by asserting an interest in promoting relationships that, based on gender alone, have the possibility of unassisted procreation, and, thus, could aid the “linkage between kids and their biological mom and dad.” Several justices questioned the credibility of this rationale, but the attorney for the states rejected suggestions that marriage has a greater meaning in the eyes of the law. He denied the assertion that state recognition of marriage bestows dignity or supports loving, committed, life-long relationships between adults. Marriage, he asserted, “developed to serve purposes that, by their nature, arise from biology.” It is inconsequential, he argued, that the state confers marital rights on opposite-sex couples who may not want children or who may be biologically incapable of conceiving. The constitution requires laws to be rational, not effective or consistent (with those related to termination of parental rights, adoption, and surrogate parenting).
If this definition of marriage is accepted, it will survive an equal protection challenge because it does not discriminate on the basis of sex or sexual orientation; marriage is equally available to all couples whose gender alone classifies them as biologically capable of reproducing without medical intervention. This definition of marriage is, undoubtedly, the most limiting and may not withstand the rationality test.
6) Marriage is whatever a state decides it to be. As Justice Scalia noted, “the issue, of course, is not whether there should be same-sex marriage, but who should decide the point.” He, along with several other justices, expressed concern about overriding the democratic process. The Supreme Court made it very clear in Windsor, its 2013 decision that struck down the federal one man/one woman definition of marriage, that marriage is a state-law issue. Even when it comes to marriage, however, states must operate within the parameters of the constitution. The Windsor case was used by both sides to support their positions and even the justices seemed unsure of Windsor’s implications. At one point Justice Breyer questioned the state attorney’s insistence that Windsor held marriage is fundamentally limited to opposite-sex relationships. Justice Breyer stated, “I’m surprised if this Court actually wrote that.”
If the court rules with the states on this issue, it will, in effect, find that the right of the states to regulate marriage is greater than the right of same-sex couples to be married.
7) Marriage is whatever another state decides it to be, or marriage is a “public act, record or judicial proceeding.” The second portion of the oral argument debated whether the constitution requires states to recognize out-of-state marriage licenses issued to same-sex couples. All parties agreed this question need only be answered if the court rules against the states and accepts a non-traditional definition of marriage. It is not contested that states have a legitimate interest in denying recognition to some out-of-state marriages, such as those based on age and consanguinity restrictions. The question, as always, is where to draw the line. The justices expressed concern that requiring states to recognize out-of-state same-sex marriages effectively legislates same-sex marriage in all states. As the Chief Justice noted, same-sex couples who live in a state with traditional marriage would simply travel to another state, get married, and then come back to their home state as legally married.
Justice Scalia added another dimension to this dilemma when he asked, “What about Article IV? I'm so glad to be able to quote a portion of the Constitution that actually seems to be relevant. ‘Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State.’ Now, why doesn't that apply?” The attorney for the states answered the clause applies to judicial judgments rather than legislative determinations and also asserted that exceptions to the full faith and credit clause have been recognized in other contexts. Chief Justice Roberts, however, noted that “it apparently is quite rare for a State not to recognize an out-of-state marriage.”
Applying the full faith and credit clause to marriage may provide the Court with a welcome alternative to expanding fundamental liberty interests or protected classes while resolving disparate treatment problems that would ensue if states are permitted to deny marital benefits to legally married same-sex couples.
The court is expected to issue a decision in the case in by the end of June 2015.
Ellen K. Boegel, an associate professor of legal studies at St. John’s University in New York, clerked for the United States Court of Appeals for the Second Circuit. Read her other legal writings for America here.