A Same-Sex Marriage Postscript

Gerard N. Magliocca

I want to make a couple of observations about the arguments before we go into hibernation until June.

First, the tenor of the discussion resonated with an article that Kenji Yoshino wrote a few years ago in the Harvard Law Review explaining that the Court is now rather allergic (that's my word, not Kenji's) to expanding the Equal Protection Clause.  When a strong equal protection claim is made, the Justices search for a way to reach the same result through a more general rationale.  In Lawrence v. Texas, for example, the Justices used the Due Process Clause and framed the issue as a liberty interest rather than going with Justice O'Connor's view that the state anti-sodomy statute violated equality.  This week we saw something similar.  The Court was not receptive to the Obama Administration's submission that sexual orientation should be treated as a suspect classification.  As for DOMA, Justice Kennedy strove mightily to come up with an Article One or Tenth Amendment argument that would invalidate DOMA without reaching the equal protection issue.  We'll see if that happens.

Second, the claim that the states have the sole power to define marriage within constitutional constraints has implications for a future Full Faith and Credit Clause claim that every state must recognize a same-sex marriage contracted in another state.  The Full Faith and Credit Clause does allow for congressional regulation, as in Section Two of DOMA, but how can Congress lack the authority to define marriage under Article One but possess the power to define marriage (albeit in a more limited way) under Article Four?  Maybe Windsor will lead to the conclusion that the Full Faith and Credit Clause does not apply to marriage at all, but that depends on how carefully the opinion is written.

Third, Tom Goldstein threw out the idea over on SCOTUSBlog that the Court could (depending on what Windsor does) vacate and remand Perry for reconsideration in light of Windsor.  If that happens, though, then the stay of the District Court opinion would presumably remain in place.  That means that same-sex marriages in California may not become legal this year, although many people are assuming that they will become lawful in June.




Posted 7:22 PM by Gerard N. Magliocca [link]