A friend whose prognostications about politics I respect and who happens to be married to someone of the same sex, told me recently that he predicts that the Supreme Court, in a decision expected before the end of this month, will refrain from enshrining same-sex marriage in law but command states to recognize such marriages from other states.
That would represent a middle ground—short of finding a constitutional right to marry someone of the same sex—which, in my friend’s view, would allow the Court to continue same-sex marriage on a course toward inevitability nationwide without having to get too far in front of states.
There’s precedent for incrementalism. Two years ago the Court ruled that gay couples married in states that have legalized same-sex marriage are eligible for Social Security and other federal benefits that opposite-sex couples receive. Yet the Court stopped short of declaring a fundamental right to marry.
Still, there are reasons to think the Court may act more sweepingly this time. One is that same-sex marriage itself has become the law in more states. Since the decision in 2013, nine states have legalized same-sex marriage, bringing the total nationwide to 37. Also, 60% of Americans think same-sex marriage should be recognized by law as valid, according to the latest Gallup poll, up from 53% two years ago.
Then there’s the appeal currently before the Court. The parties agree that if the couples who are challenging the bans on same-sex marriage in four states persuade the Court to declare a constitutional right to marry, the question whether states must recognize same-sex marriages performed in other states becomes moot.
So the court could rule as my friend suggests on the first question while ordering states to acknowledge same-sex marriages performed elsewhere, as they do valid heterosexual marriages from other states. But that, as Chief Justice Roberts observed at oral argument, presents an inconsistency that may be difficult for the Court to overlook. Consider the following exchange:
Chief Justice Roberts: I think your… argument is pretty much the exact opposite of the argument of the petitioners in the prior case. The argument that was presented against them is, you can’t do this, we’ve never done this before, recognized same-sex marriage. And now you’re saying, well, they can’t not recognize same-sex marriages because they’ve never not recognized marriages before that were lawfully performed in other states.
Douglas Hallward-Driemeier (on behalf of the petitioners): Well, what—
Chief Justice Roberts: “You’ve got to decide one or the other if you win… You can’t say that [the states] are not treating the marriage as a marriage when they don’t have to do that in the first place.”
In other words, if the couples challenging the law assert that the argument by states in opposition to same-sex marriage that they have never defined marriage to include a couple of the same sex is not a reason to deny same-sex marriage now, the couples cannot then argue that states must recognize same-sex marriages from other states because they’ve long recognized heterosexual marriages from other states.
By extension, the states cannot argue that they cannot be compelled to redefine marriage and then maintain they cannot depart from their longstanding practice of recognizing opposite-sex marriages entered into elsewhere. Either tradition matters or it doesn’t, according to the chief justice’s observation.
That reality may present an obstacle to a justice who may be tempted to decide the appeal as my friend suggests. This assumes, of course, that there already are four votes in favor of striking down state laws that ban same-sex marriage. The inconsistency that Chief Justice Roberts noted may matter most to the chief justice himself or to Justice Kennedy, who together represent the likeliest fifth or sixth votes for a majority.