Wednesday, October 08, 2014

Too much for Hitler: Why same-sex marriage is irreversible

Andrew Koppelman

The Supreme Court has declined to hear the same-sex marriage issue this term, clearing the way for marriage licenses to issue in many more states.  It remains technically possible, however, that the Court will eventually decide that there is no right for same-sex couples to marry, and thereby overturn the Court of Appeals decisions that it has declined to review.  In those circuits, what would happen to the thousands of marriage licenses that would have issued in the meantime?

The intractability of that question is the reason why the same-sex marriage issue is essentially over.  The opponents of same-sex marriage came to the Supreme Court in the spirit of an ambulance rushing someone to the emergency room.  This was their last chance to get a federal ruling that there is no right to such marriages.  By denying certiorari, the Court essentially said that it would wait until the patient is dead.

As I said, it is technically possible to invalidate those marriages at a later date.  But it is morally impossible.  No civilized country has ever abolished wholesale an entire category of existing marriages. The only precedent for such invalidation of which I am aware is the Nuremberg laws of Nazi Germany, which nullified some existing marriages between Aryans and Jews. In 1933, Prussia’s Ministry of Justice annulled such marriages.  Richard Lawrence Miller, Nazi Justiz: Law of the Holocaust 149 (1995).  That step was not followed in most of Nazi Germany.  Most German jurisdictions would not go this far, but cited mixed marriage as a ground for annulment.  Ingo Muller, Hitler's Justice: The Courts of the Third Reich 96 (1991); S.W.D. Rowson, Some Private International Law Problems Arising Out of European Racial Legislation, 1933-1945, 10 Modern L. Rev. 345, 346 (1947).

In short, wholesale invalidation was too radical a step even for Adolf Hitler.  The confusion of property and other rights claims that would arise out of such retroactive invalidation would be staggering.  The Court understands this very well.  Even if the next few Supreme Court Justices are appointed by Republicans and have no sympathy for same-sex marriage, this a line they are unlikely to be willing to cross.  This ketchup can’t be put back into this bottle.  Once there are hundreds of same-sex marriages in places like Utah, that fact is irreversible.  If undoing them en masse was too much for Hitler, it is too much for the Court.

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