Sunday, July 5, 2015

My pocket analysis of the same-sex marriage ruling

Ok, I broke down and read much of the Supreme Court's same sex marriage ruling. We have conservatives calling the majority opinion jumbled and impossible to follow, and progressives calling the dissents 'hysterical.' So I have to read them, don't I?

I started with Clarence Thomas's dissent. Why? Because the outtakes listed here were the most hilarious. Thomas's dissent was a mess. First he defines 'liberty' as mostly meaning 'freedom of movement.' So he ignores the freedom or right to marry. Even in discussing the most relevant earlier case, he ignores the right to marry, and says the case was important because people could be imprisoned for being a spouse or a minister in an illegal wedding. Yes, it's a bad opinion.

Comparison to prior case law

The most relevant case, Loving v. Virginia, was a 1967 case where Virginia refused to recognize the marriage of a white man and black woman who had married in Washington DC but returned to Virginia to live. The Supreme Court, in its ruling, overturned all state laws against interracial marriages. The analogy couldn't be clearer.

So how does Loving v. Virginia figure in this latest ruling? In the text, Loving is cited 22 times, mostly by the majority. Both Scalia and Alito ignore it, and Thomas makes the wackadoodle argument about imprisonment being the issue, not marriage. No one says that Loving was wrongly decided because it clearly wasn't wrongly decided.

So if Loving was decided correctly, how does this inform the current case? Neither side makes a slam-dunk argument. The majority doesn't hammer home the point of a couple's status changing as one or both cross a state line. That is the most ridiculous aspect of the situation, and why states are compelled to recognize the marriages and divorces performed by other states.

Recognition or chaos

But it's also a bit ridiculous for one state (Massachusetts) to unilaterally change marriage law in all other states. I supposed the other states could have decided to recognize marriages performed in other states, and maybe we wouldn't have had this ruling. But so many states resisted doing so, and the conditions were set for this confrontation. This was absolutely inevitable. Same-sex couples were:
  • Going to get married where they legally could.
  • Going to move to states that refused to recognize their marriages.
  • Going to sue for their rights. 
I can't respect Roberts' dissent because he doesn't acknowledge this. He wants the legislative process to carry on. To make that decision, Roberts has to ignore the rights of couples who are legally married in one jurisdiction but living or traveling in another.

I stopped reading Alito's dissent because he was whining about how religious people were being labeled as bigots. Alito seems to have missed the facts that 1) a Supreme Court ruling can't prevent public opinion from going that way, and 2) a whiny dissent can't prevent it either. I didn't read Scalia's dissent because I figured it would make me too angry.

So, overall, I was disappointed with the reasoning of this decision. No group really wrestled with the problem of states being required to recognize marriages of other states, and what we're going to do when there are conflicts. Are we going to follow Loving, and now this decision, and force them to recognize the marriages, or are we going to do something else? Who gets to decide?

Finally, what happens when a state allow plural marriage? All hell breaks loose again.


Dangerous said...


I recognize that you would think that the opinions as written did not address one state recognizing another's marriages. Because of the ruling striking down ALL state laws that disallowed same-sex marriage, the court did not have to separately address the issue of married people crossing state lines. That issue became moot and only garnered a paragraph as a result. Further, the dissents objected to the decision in general, so they also didn't bother to address this situation separately. One can assume they were with the status quo.

But state be required to recognize marriages in other states (and drivers' licenses and court rulings etc.) IS unequivocally in the Constitution. Article IV states that each state must give "[f]ull faith and credit ... to the public Acts, Records, and judicial Proceedings of every other State". So Massachusetts didn't change the law everywhere. The other states were already obligated to recognize those marriage once the Supreme Court overturned DOMA. Perhaps there was still a legal question of a loophole, but Article IV is quite clear and necessary so that we are a COUNTRY as opposed to a collection of independent sovereign states.

The assertion of "states rights" is and always has been feeble, and the last bastion of those who want to discriminate. Could one state pass a law invalidating other state's marriages? Of course not. Instead, each state must address issues of a Massachusetts-based marriage using Massachusetts law, even if that state is Texas. Courts do this all the time, as they must, when American citizens exercise their right to move from state to state.

Rebellious states and rebellious people in those states have routinely presupposed that they or their state could overrule other states. They cannot. They have to accept what other states decide for their citizens and grant those citizens the same rights and privileges they would enjoy in their home states. Article IV is a critical, if often-overlooked, part of the Constitution.

ModeratePoli said...

@dangerous, thanks for the analysis. I suppose it's not clear to me what the basis for the ruling was. It sounded like it was a combination of 'equal protection' and 'due process' but I'm not sure that those arguments are as strong as they should be.

Obviously, the previous marriage laws were poorly suited to gays and lesbians, but can they claim that marriage laws must be changed to provide them 'equal protection?'

What other groups could make such claims too? If you can only have a satisfactory marriage with multiple wives (as was the Mormon doctrine for a while), does each state have to change its marriage law to accommodate you? That analogy makes me say no, but then I'm back to Loving, and how I think that was right.

So there's another piece that I can't quite put my finger on that makes Loving compelling.

Dangerous said...

Breaking down the ruling in the case, the primary basis was equal protection under the law and, yes, someone can sue for that and the Supreme Court can -- and is, in fact, obligated -- to adjudicate that claim and every state law, if necessary, against the Constitution. As such, the Supreme Court ruled, quite correctly, that marriage laws in which the states only recognize two parties as "married" for purposes of other laws, and that only provided for opposite-sex partners, did violate the Constitution's guarantee of equal protection for all. Hence, the law has to change to comport to the Constitution.

(The due process aspect of the ruling seems only to apply to the state issuance of the license, in that same-sex couple were denied those licenses without due process of law. But both those guarantees are in the same sentence of the 14th Amendment, so it hardly matters; either basis is sufficient.)

This is hardly the first time this has happened. For nearly two centuries the states, in responding to their citizen's political demands, have attempted to craft laws that don't comply with either the letter or the spirit of the Constitution.

And, yes, other parties can make such claims and their right to do so is guaranteed in the 1st Amendment. So Mormons or any individual can claim a right to multiple spouses and present their arguments to the court. The state can defend the statute and argue that Supreme Court precedent (Reynolds v. United States, 1879) says that state have the authority under the Constitution to limit marriage to two people. But the courts today aren't obligated to just accept that old ruling against polygamy, and a plaintiff can argue that laws that restrict state recognition (and statutory benefits or obligations) of marriage to two people fails the Constitution's Equal Protection Clause.

Such a claim has some additional legal hurdles to overcome versus same-sex marriage claimants had, but only in form rather than substance. For example, I don't think a claim for a right of multiple, concurrent spouses would earn an equal protection ruling, since the state would argue that, if all the parties did not agree to the union, the person wanting multiple spouses has made overlapping legal promises that person cannot possibly fulfill. (Foremost would be joint-and-several liability in marriage.) However, consent of all parties and implied acceptance that all the parties are joined in the union, and that one broken bond breaks them all, fulfills the mathematical definition of equal protection.

Such analysis is not sexy (i.e., emotional), since the prohibition of polygamy has as much to do with the ick-factor as prohibition of same-sex marriage. But the contract of marriage and ick-factor (or just general distaste) are separate issues, with contract law mattering and the public's ick-factor not when it comes to Constitutional analysis.

The public likes to use the law as a bludgeon, but the Constitution says no, you can't do that, if it violates someone's basic right to life, liberty or property. For marriage, this is an easy call. Basically, it's none of anyone's business, provided the parties can give legal informed consent. A more interesting question would address the constitutionality of, say, fines assigned to violators of mandatory seat-belt laws. Is operating a motor vehicle on public roads a Constitutional right?

ModeratePoli said...

I find this analysis interesting, though it also falls short of clarity.