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.