What’s at Stake in the Supreme Court’s Gay-Marriage Case

The United States Supreme Court will hear arguments today in Obergefell v. Hodges, a case that could determine whether same-sex marriage is a constitutional right. (Times reporters are live blogging the proceedings here.) Emily Bazelon, a staff writer for the magazine, and Adam Liptak, The Times’s Supreme Court correspondent, have been exchanging emails about the possible outcomes of the case and what they might mean for the gay rights movement.

Adam,

On Tuesday, the Supreme Court will hear a historic debate about the right of gay couples to marry. In more than one way, this case, Obergefell v. Hodges, has zoomed onto the docket. The justices agreed to hear it just a few months ago, spicing up the term by giving the case one of the last spots on the spring calendar. Obergefell combines four challenges to same-sex marriage bans, from Kentucky, Tennessee, Ohio and Michigan. It is framed in sweeping terms that would have been unimaginable just a dozen years ago. In 2003, the high court of Massachusetts became the first to find a right to marriage equality in a state constitution. Now the high court of the United States is poised to decide whether the federal constitution requires all states either to license same-sex marriages or to recognize those marriages if they’re performed elsewhere.

I’m so glad this case has arrived — and I already miss it.

Same-sex marriage has been my favorite legal battle to cover for the last several years, because it has moved so quickly, alongside public opinion, in the direction of righting a wrong. So many inequities — economic and otherwise — can’t be easily solved by courts and lawmakers. But this one can. Marriage equality is a civil rights slam dunk.

There is a moral case for same-sex marriage: It expands the boundaries of a durable form of love and commitment. And over the past dozen years, since the ruling in Massachusetts, an evidence-based case has taken shape as well. It’s reflected throughout the briefs filed in Obergefell, which include statements like the “scholarly consensus is clear and consistent: Children of same-sex parents fare just as well as children of different-sex parents” (American Sociological Association) and findings that same-sex couples have “levels of relationship satisfaction similar to or higher than those of heterosexual couples” (American Psychological Association). Expanding the institution of marriage hasn’t weakened it. Maybe it’s a coincidence, but the divorce rate has tended to rise in states that ban same-sex marriage and fall in states that allow it.

I’m not expecting a 9-to-0 ruling striking down the state same-sex-marriage bans, of the sort the court achieved when it ended state prohibitions against interracial marriage in Loving v. Virginia in 1967. But whoever writes a dissent will do his best to steer clear of any whiff of prejudice (or to use the court’s word, animus). Even Republican politicians, many of whom inveighed against same-sex marriage only a decade ago, now hope the court will issue a broad ruling that makes the issue go away once and for all. And as you pointed out a couple weeks ago, top law firms won’t defend the state bans.

The respectable arguments against a big Supreme Court ruling are about the power of the states and the role of the judiciary. States like Ohio argue that their voters put same-sex marriage bans in place, and so it’s up to them — not a court, and especially not a federal court — to lift them. When same-sex marriage made an appearance at the Supreme Court two years ago, Justice Anthony Kennedy, writing for the majority, weighed both a state’s right to define marriage and an individual’s right to equal protection under the law. In that case, United States v. Windsor, those two interests were in sync, because the question was whether Edith Windsor, whose same-sex marriage was recognized by the state of New York, could claim a federal tax exemption granted to spouses when her wife died and left Windsor her estate. In other words, Kennedy’s opinion said that federal marriage law had to track state marriage law.

This time, if Kennedy and the court want to make same-sex marriage the law of the land, they will have to override the apparent wishes of the voters in 14 states. (I’m counting Alabama on this side of the ledger because its Supreme Court ordered county probate offices to stop granting same-sex-marriage licenses after a federal judge ruled the state ban unconstitutional.) How much do you think the states’ rights, leave-it-to-the-voters arguments will matter to Kennedy or any other justice?

And do you think the timing is right for the Supreme Court to declare a broad constitutional right to marriage? For years, I argued for taking small steps, one state at a time, when possible through ballot initiatives and legislation. The more direct the form of democracy, I figured, the better chance that social change would take deep root. At the time, this was also the strategy of many gay rights lawyers and activists, who were worried about backlash. But now, looking at all the states where courts have struck down same-sex-marriage bans, the only one to experience a concerted backlash is Alabama.

If the justices don’t want to go all the way — if they don’t want to be even a few years ahead of public opinion in conservative states — they could take a side exit out of this case, by letting states leave their bans on the books but telling them the Constitution demands that they recognize the rights of gay couples married by other states. Do you think this is a likely outcome? It would be a symbolic disappointment for marriage equality. But practically speaking, how much would it matter, because couples could cross state lines, have a wedding and then cross back?

Emily

Emily,

The pace of change has been astounding. Just two decades ago, the very idea that a same-sex couple might possibly be allowed to marry caused bipartisan congressional majorities to enact, and President Bill Clinton to sign, the Defense of Marriage Act, an extraordinary federal law that had discrimination as its avowed purpose. Just one decade ago, upon learning that gay and lesbian couples could marry in Massachusetts, voters across the nation — in red states and blue — marched to the polls to make sure nothing like that happened near them.

But the lived reality of same-sex couples yearning for and achieving a share of the profoundly conservative institution of marriage has changed hearts and minds. It has given rise to what you rightly say is a powerful practical, political and moral case for same-sex marriage. The Supreme Court is likely to accept it, and gay rights advocates will rejoice.

But their victory would be sweeter yet if achieved by ballot rather than by judicial fiat.

The Loving decision you refer to confirmed a democratic consensus. The stunning recent run of victories for same-sex marriage, by contrast, was mostly the work of judges rather than voters or their elected representatives. Since last fall, the number of states allowing same-sex marriage has grown to 36 from 19, plus the District of Columbia — but the surge was entirely a result of court decisions. It would have been nice to see a dash of political will to counterbalance the wave of judicial power.

That said, the liberal wing of the Supreme Court has played its cards brilliantly. In 2013, when just a dozen states allowed same-sex marriage, the court ducked the question of whether there was a constitutional right to same-sex marriage even as it cleared the way for such unions in California, the most populous state. In October, the court turned away petitions seeking a review of appeals-court decisions striking down same-sex marriage bans in five states.

That move, coupled with a decision the next day from the federal appeals court in California, lifted the number of states with same-sex marriage into the sweet spot: Historically, when there are only 14 or so states left that ban a discriminatory practice, the Supreme Court is often ready to act. That was roughly the number of states that still had segregated schools in 1954, when the court decided Brown v. Board of Education. It was roughly the number of states that banned interracial marriage in 1967, when the court decided Loving. And it was roughly the number of states that still considered sodomy a crime in 2003, when the court struck down such laws in Lawrence v. Texas.

Jeffrey S. Sutton, the Sixth Circuit Court of Appeals judge who wrote the majority opinion in the case the Supreme Court is reviewing this week, drew a comparison with the Lawrence decision. “Freed of federal court intervention, 31 states would continue to define marriage the old-fashioned way,” Judge Sutton wrote. “ Lawrence, by contrast, dealt with a situation in which just 13 states continued to prohibit sodomy, and even then most of those laws had fallen into desuetude, rarely being enforced at all. On this record, what right do we have,” he asked, referring to judges, “to say that societal values, as opposed to judicial values, have evolved toward agreement in favor of same-sex marriage?”

Now let me try to answer a couple of your questions directly. Justice Kennedy earnestly cares about federalism, and that made Windsor an easy case for him. Now he will have to weigh federalism against the value and dignity of gay families. The families will win.

You asked if the timing is right. Back in 2011, I talked to William N. Eskridge Jr., a colleague of yours at Yale Law School. He noted that 13 years elapsed between Brown and Loving, and he said that Lawrence was the Brown of the gay rights movement. I did the math: “If the comparisons are apt and the same judicial timetable holds,” I said, “that means bans on same-sex marriage will fall around 2016.” So I was off by six months. (In September, I made another prediction: I said the court would issue its same-sex marriage ruling on June 29. Soon we’ll know.)

The “side exit” of requiring states to recognize marriages performed elsewhere, but not to issue their own licenses, would look like a victory — but it would be winning ugly. It would still stamp some unions with a second-class status. And it could leave open the question of whether so-called “evasion marriages” — ones performed on, say, a weekend trip from Mississippi to Atlantic City — would have to be recognized by the couples’ home states.

Now let me ask you a couple of questions. Is the majority prepared to write an opinion that will have ripples for gay rights that extend beyond marriage to government and private discrimination? And the flip side: Will the court carve out protections for religious freedom that will lend a small bitter note to what is likely to be a joyous day for the gay rights movement?

Adam

Adam,

It’s true: The ballot box is better than judicial fiat. In 2012, before Windsor, the marriage-equality movement put its energy into ballot initiatives in Washington State, Maryland and Maine and won all three. But maybe your prediction about timing helps explain why the action has moved to the lower courts in the two years since Windsor. If Brown is to Loving as Lawrence is to Obergefell — I know that sounds like the old analogy section on the SAT, but bear with me — then that suggests the judges have absorbed the underlying civil rights message of the earlier ruling and are following through on a promise the electorate has had time to accept. The proof, I suppose, will be in the response to a 50-state ruling, especially in the states where bans on same-sex marriage would fall.

You asked about the potential ripple effect of a same-sex marriage victory for gay rights in other areas. I’ll refrain from droning on about the higher levels of scrutiny the court accords to laws that appear to discriminate on the basis of race, ethnicity, religion or sex — but not, thus far, sexual orientation. I’m with Justice Scalia: “Strict scrutiny, intermediate scrutiny, blah blah blah blah.” The government should have a pretty decent reason for passing a law. Singling out one group based on a fundamental and unchangeable aspect of its identity is usually not a decent reason.

I think Justice Kennedy gets this. His opinions striking down laws that discriminate on the basis of sexual orientation, going back to 1996, basically say that you can’t kick people to the curb, under the law, because you don’t like them for a reason that’s beyond their control or none of your business. Good enough for me! And good enough for generally protecting gay people from discrimination, I think. How about you?

And to return to our earlier theme, it’s not just the job of the courts to guard against discrimination. In his new book, “Speak Now,” Kenji Yoshino, the New York University law professor and Times Magazine contributor, points out that marriage equality has outpaced workplace equality to a surprising degree. In 29 states, employers can still legally fire a person for being gay. In most of the country, this is a cultural anachronism; that was apparent in the recent wave of outrage over proposed religious-liberties bills in Indiana and Arkansas. To many people — and many major corporations — it seemed wrong to let a company refuse to cater a gay wedding based on religious objections. The fury elided the fact that in many states, anti-discrimination laws don’t protect gay people, so a business could refuse to hire or serve them for just about any reason. A bill proposed in Congress, the Employment Non-Discrimination Act, would fix this. But it’s not law. Yoshino thinks that’s because ENDA would protect transgender people as well as gays and lesbians. He calls this “one of equality’s next frontiers.”

I have two more somewhat contradictory thoughts about the collision between religious liberties and gay rights. The first is that if this is the backlash, it’s a minor rear-guard action. Should rejected customers sue every cake-baker and photographer and flower arranger who won’t cater a gay wedding? To quote Andrew Sullivan, “Let them embrace discrimination and lose revenue.”

At the same time, I agree with Sullivan and others who worry about the broader consequences and implications of the recent spate of religious-liberties bills. What about the fundamentalist adoption agency that won’t place children with gay couples, or the landlord who won’t rent to them? The sit-ins of the 1960s established the principle that as places of public accommodation, businesses should be open to all. I don’t really see why invoking the Bible should change that. Let’s protect religious liberties when they don’t trample on other people’s rights, and not use them as a pretext for passing laws designed to allow businesses to refuse service to customers.

Our colleague Ross Douthat, with whom I’ve debated these issues before, asks whether religious schools and churches will be next in line to have recognition of same-sex marriage forced upon them in one form or another. I think there’s an easy reason that the answer is no: There’s a clear legal line between a for-profit business and a nonprofit organization. No one is coming for the churches and religious schools. And if they did, the Supreme Court would stop them.

So what’s a better candidate for the next court battle over religious liberties? And what will you be listening for during the argument in Obergefell?

Emily

Emily,

You covered a lot of ground there. We agree, I think, that the Supreme Court’s tiers of scrutiny are a legal fog machine. Justice Kennedy has proved perfectly capable of striking down laws that discriminate against gay people without specifying whether his scrutiny was rational, heightened, strict or some combo sandwich built of animus-detection and dignity-protection. But there would be a symbolic value to placing gay people on the other side of a legal line meant to protect groups that have suffered grave discrimination at the hands of the government.

The fact that equality at the altar is outpacing equality in the cubicle is very hard to understand. Come July, we are likely to be living in a world in which gay couples around the nation can be married in the morning and, in much of the country, be fired that same afternoon — for being gay.

I share your ambivalence about the proxy wars being fought by both sides around religious-freedom laws. David A. Strauss of the University of Chicago wrote a very good essay on this for The Washington Post a couple of weeks ago. Perhaps we should forget about these laws and return to letting the First Amendment do the work of protecting religious liberty. That would leave us with an easy-to-understand rule, one articulated by Justice Antonin Scalia in a 1990 Supreme Court decision: There are no religious exceptions to generally applicable laws under the First Amendment’s free-exercise clause. It cannot be, he said, “that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation.”

At the arguments on Tuesday, I’ll be listening to two justices in particular. Justice Kennedy will be testing out his rationales for a ruling that will cement his legacy as the greatest champion of gay rights ever to sit on the Supreme Court. But to keep things interesting, he will probably say some things sympathetic to the other side. Those comments will be parsed for the next two months by me and you and just about everyone else with a computer and an Internet connection.

I’ll also be attentive to Chief Justice John G. Roberts Jr., who will not be inclined to join either a Kennedy majority opinion or a Scalia dissent. He, too, will be testing out themes. They may point toward a dissent that sounds a little like Judge Sutton’s majority opinion in the appeals court. Or they may point to a concurrence that supplies a sixth vote to the majority on a day that will seem to many, as Alexander Meiklejohn said of New York Times v. Sullivan, the great libel case, “an occasion for dancing in the streets.”

Adam