Brett R. Turner, Senior Attorney, National Legal Research Group
A previous entry in this series of posts discussed Obergefell v. Kasich, No. 1:13‑CV‑501, 2013 WL 3814262 (S.D. Ohio July 22, 2013). Obergefell granted a preliminary injunction, holding that Ohio was required to recognize a Maryland same-sex marriage. The parties to the marriage had almost no connection with Maryland. They flew there in an airplane, were married literally while the airplane sat on the tarmac, and then immediately flew back. The court reasoned, first, that Ohio's constitutional and statutory restrictions upon same-sex marriage were motivated by antigay prejudice, and second, that there is no rational basis for refusing to recognize gay marriage.
The final decision in Obergefell has now been handed down. Obergefell v. Wymyslo, No. 1:13-CV-501, 2013 WL 6726688 (S.D. Ohio Dec. 23, 2013). Not surprisingly, it reaches the same end result as the initial decision did. The decision expressly holds that when a couple is legally married in a state that permits same-sex marriage, the couple therefore acquires a constitutional right to remain married in other states. "The right to remain married is therefore properly recognized as one that is a fundamental liberty interest appropriately protected by the Due Process Clause of the United States Constitution. " Id. at *6 (emphasis added). Because the court viewed the plaintiffs as already married, it held that intermediate scrutiny should apply in an equal protection attack upon legislation restricting the right to remain married. It then held that the Ohio provisions failed both the intermediate scrutiny test and the rational basis test.
The opinion claims that "[t]he Court's ruling today is a limited one," id. at *1, but this is plainly not so. The plaintiffs in Obergefell had utterly no jurisdictional connection to Maryland. They were not domiciled there and did not live there. They went there only for the purpose of being married, and they left as soon as their purpose was accomplished. If Obergefell is broadly accepted, any same-sex couple in the nation can obtain a marriage that their home state is constitutionally required to recognize, simply by traveling to a state that recognizes same-sex marriage. The practical effect of Obergefell is to create a national federal constitutional right to same-sex marriage, so long as the actual license is issued by another state's clerk.
Despite the court's initial claim that its ruling was limited, the court recognized later in a footnote that its ruling is much broader.
As a final note, although the question of whether Ohio's refusal to grant same‑sex
marriages also violates Ohio same‑sex couples' right to due process and equal protection is not before the Court in this case, the logical conclusion to be drawn from the evidence, arguments, and law presented here is that Ohio's violation of the constitutional rights of its gay citizens extends beyond the bounds of this lawsuit.
Id. at *21 n.22. Given this statement, the court's initial claim that its ruling was limited borders upon disingenuous. Further recognizing that the actual effect of its decision is very broad, the court spent most of its opinion providing a legal justification for its holding that states cannot take away the right to remain married. The court's focus upon the right to be remarried is also somewhat misleading, for the court placed utterly no jurisdictional limitations on the right to get married. Since a couple can functionally be married anywhere, the right to remain married is for all practical purposes no different from the right to get married. If Ohio must recognize a Maryland same-sex marriage, even where the parties plainly traveled to Maryland only for the purpose of getting married, then functionally all Ohio residents have a right to obtain a same-sex marriage that Ohio must recognize.
Whether this holding survives appellate review remains to be seen. If five members of the Supreme Court had been inclined to create a federal constitutional right to same-sex marriage in 2012, Windsor would have been a very different opinion. If Obergefell were to be appealed to the 2012 Supreme Court, it would likely be reversed.
But of course, any appeal in Obergefell is likely to end up in the Supreme Court in 2014 or 2015. Even if there is no turnover on the Court before that time, developments after 2012 are likely to influence the decision.
In particular, it is very possible that by 2014 or 2015, the more liberal Justices on the Supreme Court—Justices Breyer, Sotomayor, Kagan, and Ginsburg—will be ready to hold that there is a fundamental right to same-sex marriage. It seems unlikely that the most conservative judges—Justices Roberts, Alito, Thomas, and Scalia—would reach this result.
The question therefore turns upon Justice Kennedy. The actual basis for Justice Kennedy's Windsor opinion is that DOMA section 3 was enacted out of antigay prejudice. As previous posts on this blog have noted, that reasoning is potentially quite powerful, because essentially all
restrictions upon same-sex marriage were motivated to some material extent by antigay prejudice. Justice Kennedy's opinion can easily be used to strike down any and all provisions limiting recognition of same-sex marriages.
But Justice Kennedy's opinion also included a long discussion of federalism, stressing that marriage has traditionally been a subject for state law. The key issue is whether this discussion was intended to materially limit the much broader reasoning in the remainder of the provision,
or whether it was intended to distract more conservative readers from the very broad reach of the remainder of the opinion. The author suspects that in 2012, Justice Kennedy was not willing to concede that the entire discussion of federalism was irrelevant. But the law on same-sex marriage is evolving, and restrictions upon same-sex marriage are weakening all over the country. By 2014 or 2015, Justice Kennedy might see that discussion of federalism is considerably less important.
The author would nevertheless have preferred that Obergefell make a straightforward argument for a federal right to same-sex marriage—essentially to extend to same-sex marriages the rationale of Loving v. Virginia, 388 U.S. 1 (1967). The actual Obergefell opinion stresses its limited nature, functionally creates a national right to same-sex marriage, and then essentially admits in a footnote that the decision is actually not limited. One hopes that if the court's reasoning is reviewed on appeal, the appellate courts will recognize the opinion for what it is, and not for what it claims to be.
The other big news of the week was Kitchen v. Herbert, No. 2:13-CV-217, 2013 WL 697874 (D. Utah Dec. 20, 2013), which held that Utah was required to allow same-sex marriage. Kitchen is another in a growing line of cases giving very little weight to the discussion of federalism in Windsor, and holding that states are not free to choose either to recognize or not recognize same-sex marriage.
Interestingly, Kitchen was skeptical of the argument that Utah's restrictions upon same-sex marriage had been motivated by antigay prejudice. The court recognized that some degree of prejudice was present, as it almost always is when these sorts of provisions are enacted. But the court continued:
But there are also reasons why Amendment 3 may be distinguishable from the laws the
Supreme Court has previously held to be discriminations of an unusual character. Most notably, the Court has not articulated to what extent such a discrimination must be motivated by a "bare . . . desire to harm a politically unpopular group." U.S. Dep't of Agric. v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973). . . .
While the Plaintiffs argue that many Utah citizens voted for Amendment 3 out of a dislike of gay and lesbian individuals, the court finds that it is impossible to determine what was in the mind of each individual voter. Some citizens may have voted for Amendment 3 purely out of a belief that the amendment would protect the benefits of opposite-sex marriage. Of course, good intentions do not save a law if the law bears no rational connection to its stated legitimate interests, but this analysis is the test the court applies when it follows the Supreme Court's rational basis jurisprudence. It is unclear how a mix of animus and good intentions affects the determination of whether a law imposes a discrimination of such unusual character that it requires the court to give it careful consideration.
Id. at *23 (emphasis added).
This passage focuses directly upon the primary problem with the antigay prejudice theory. It is effectively certain that some voters and some legislators voted to restrict same-sex marriage out of antigay prejudice. But the mere fact that a law was supported by some small number of bigots does not make the law unconstitutional. As the court notes, a key question in applying the antigay prejudice theory would seem to be how many of a provision's supporters were motivated by bias.
In the specific case of measures restricting same-sex marriage, it is very possible that many persons supporting these measures had no prejudice against gay and lesbian persons generally, but simply supported the traditional rule that only opposite-sex couples can marry. Acceptance of this traditional belief is not equivalent to antigay bias. Windsor essentially recognized this by stressing that the validity of marriages is an issue of state law. If all opposition to same-sex marriage results from antigay bias, then the issue is not one for state law, and the Windsor majority opinion makes no sense. Courts should not invalidate restrictions upon same-sex marriage for antigay bias unless there is strong evidence that the restrictions
were primarily motivated by antigay prejudice. All opposition to same-sex marriage does not necessary arise from antigay prejudice.
The core reasoning of Kitchen is a straightforward argument that restrictions upon same-sex marriage violate the fundamental constitutional right to marry. The argument was expressly based upon Loving, and the court expressly noted that the State's argument was similar to the argument made against interracial marriage in Loving. Whether the appellate courts agree with the analysis remains to be seen. Kitchen is nevertheless a much more straightforward analysis than is Obergefell, and the author finds Kitchen much more persuasive.