Same-Sex Marriage at the United States Supreme Court

On April 28, 2015, the United States Supreme Court heard 2½ hours of oral argument in a group of cases collectively known as Obergefell v. Hodges. Two questions were argued: first, whether the Fourteenth Amendment of the United States Constitution requires states to issue marriage licenses to same-sex couples; second, whether the Fourteenth Amendment requires states to recognize same-sex marriages lawfully performed out of state.

In regard to the first question, it was clear from the oral argument that the justices of the Supreme Court are still grappling with how best to frame the issue. Some of the justices – namely Justices Kagan, Sotomayor, and Breyer – seemed to indicate by their questions that they may view the issue as one of fundamental rights. The Supreme Court has long held marriage to be a fundamental right under the Fourteenth Amendment, requiring that states demonstrate a compelling interest to be able to exclude classes of people from having access to that right. Much like the Court in Loving v. Virginia held that states could not deny individuals the right to marry someone of a different race, the Court could now hold that states cannot deny individuals the right to marry someone of the same sex.

Chief Justice Roberts, on the other hand, seemed to view the issue as one of sex discrimination, posing this direct question: “[I]f Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?” The Chief Justice could conceivably vote with a majority against the bans on same-sex marriage, but base the decision on equal protection grounds. This could provide a narrower basis for such an opinion than applying the fundamental right of marriage doctrine to same-sex couples. He did, however, question whether the proponents of same-sex marriage were not seeking to enact a change in marriage as it has long been defined.

Justices Scalia and Alito appeared to frame the issue as one of who decides: should the ability of same-sex couples to marry, as an issue of state law and policy, be decided by the people and their elected representatives, or the courts? Justice Scalia based a number of questions on the potential ways a ruling in favor of same-sex marriage could impact individuals who are fundamentally opposed to it on religious grounds. Justice Alito, meanwhile, repeatedly referred to a hypothetical meant to establish whether a ruling in favor of same-sex marriage could lead to further changes to the definition of marriage, potentially making it so that polygamous marriages might be the logical next step in doctrinal change.

The vast majority of observers, however, are looking to Justice Kennedy, who has authored the last three major Supreme Court decisions to hold in favor of equality on the basis of sexual orientation: Lawrence v. Texas, Romer v. Evans, and U.S. v. Windsor. Justice Kennedy’s questions were focused largely on the broad implications of a ruling on same-sex marriage, such as the fact that the traditional definition of marriage has been in place for “millennia”, the concept of marriage as a dignity-bestowing institution, and the effect of marriage on children. He also noted that the same amount of time has passed from the Lawrence decision to now as had passed between Brown v. Board of Ed. and Loving. It is clear that, however Justice Kennedy comes out on the issue of same-sex marriage, he is well aware of the historic crossroads at which the Supreme Court now stands.

While the arguments as to the first question left many observers scratching their heads as to what the possible outcome might be, the arguments as to the second question suggested that the justices might be more united on the subject of whether states could decline to recognize an entire class of lawful out-of-state marriages. Justices Scalia, Roberts, Breyer, and Sotomayor all pressed the attorney defending the state bans on how those bans could stand up against constitutional provisions (e.g., “Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State.”), case precedent, and historic practice. But the justices also seemed to agree that the Court only need address the issue of whether states must recognize lawfully-performed out-of-state same-sex marriages if they rule that states are not required to issue marriage licenses to same-sex couples.

Ultimately, attempting to predict the outcome of a United States Supreme Court decision is about as sure a science as reading tea leaves. But what impact could the possible outcomes have on Connecticut? In the short term, very little. Connecticut has had marriage equality since 2008, when the Connecticut Supreme Court held in Kerrigan v. Commissioner of Public Health that restricting marriage to opposite-sex couples violated the equal protection right of same-sex couples. That decision also established sexual orientation as a quasi-suspect class for purposes of equal protection, meaning that laws classifying on the basis of sexual orientation are, in Connecticut at least, subject to heightened judicial scrutiny. So while the Supreme Court may soon be issuing a national decision on marriage equality (and potentially the level of judicial scrutiny applied to classifications based on sexual orientation), marriage equality and the legal protections for LGBT individuals will continue to be in place here in Connecticut.