Do Same-sex Couples Have a Constitutional Right to Get Married and Stay Married?

A dozen years ago, there was not a state in the nation where same-sex partners could legally marry. Since then, same-sex marriage has been legalized, either by court ruling, legislation or referendum, in 37 of the 50 states and the District of Columbia. (In one of the 37 states, Alabama, the state's highest court issued an order on March 3, 2015, prohibiting the issuance of marriage licenses to same-sex couples. The order came after a federal district court struck down Alabama's ban on gay marriage and more than 500 same-sex couples were married in the state.) Now, the U.S. Supreme Court is poised to decide whether any state may prohibit same-sex marriages ' or decline to recognize such marriages ' without running afoul of the federal Constitution. A decision is expected late this month.

Last October, as it opened its current Term, the Supreme Court declined to hear any of the cases, stemming from the Fourth, Seventh and Tenth Circuits, in which state bans on same-sex marriage were held unconstitutional. The following day, the Ninth Circuit joined its sister courts and invalidated the state bans on same-sex marriage that were before it. Reacting to questions about the high Court's denial of certiorari, Justice Ruth Bader Ginsberg remarked that there was “no crying need” for the Court to weigh in on the same-sex marriage issue in the absence of a split among the circuits. (For a discussion of those cases and Justice Ginsberg's remarks, see F. Gulino, “No Need to Rush”: As State Bans on Same-sex Marriage Continue to Fall, the Supreme Court Dodges the Issue (for Now), The Matrimonial Strategist , Nov. 2014 (online version), http://bit.ly/1PdHhx7.) Such a circuit split was just around the corner.

In a 2-1 decision handed down on Nov. 6, 2014, the Sixth Circuit became the first federal appeals court to uphold laws banning same-sex marriage (and the recognition of such marriages) in cases from Kentucky, Michigan, Ohio and Tennessee. The ruling created precisely the kind of circuit split that usually attracts the interest of the high Court, and this was no exception: Early in the new year, the Justices agreed to hear those cases, to determine whether states have the power to ban same-sex marriage or deny recognition to such marriages entered legally in other jurisdictions. DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), cert. granted, 83 U.S.L.W. 3315 (U.S. Jan. 16, 2015) (No. 14-571).

The Sixth Circuit Decision on Appeal

In upholding the state laws before it that prohibit same-sex marriage (or the recognition of such marriages), the Sixth Circuit relied in part on the Supreme Court's summary order in Baker v. Nelson, 409 U.S. 810 (1972). In Baker, the high Court had rejected an appeal by a same-sex couple who challenged Minnesota's then-ban on gay marriage for what the Court called the want of a substantial federal question. Pointing out that Baker has never been explicitly overruled, the Sixth Circuit majority declared that “[n]ot one of the plaintiffs' theories ' makes the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters.” DeBoer, 772 F.3d at 403.

Writing for the majority, Judge Jeffrey Sutton also used the Supreme Court's landmark decision in United States v. Windsor, 133 S. Ct. 2675 (2013) ' the decision relied upon by dozens of other federal courts to strike down same-sex marriage bans ' to support the view that the definition of marriage should be left to the states and the democratic process. Discussing the traditional role of the states in defining marriage, Judge Sutton wrote that “[r]espect for democratic control over this traditional area of state expertise ensures that 'a statewide deliberative process that enable[s] its citizens to discuss and weigh arguments for and against same-sex marriage' can have free and reasonable rein.” 772 F.3d at 408 (quoting Windsor, 133 S. Ct. at 2689).

The Sixth Circuit also rejected the argument that same-sex couples are entitled to marry as a constitutional right because of the loss of dignity they and their children suffer as a result of state laws forbidding them to marry. While the court noted that “there is much to be said for 'dignity and respect' in the eyes of the Constitution and its interpreters,” the court also declared that “any loss of dignity and respect on this issue did not come from the Constitution.” 772 F.3d at 417. And it added that “[f]aith in democracy with respect to issues that the Constitution has not committed to the courts reinforces a different, more sustainable norm” than an unchecked expansion of constitutional rights through judicial decisions. Id. at 418.

Having determined that states do have the right to define marriage as the union of a man and a woman, the Sixth Circuit also ruled that states have the concomitant right to deny recognition to same-sex marriages entered into in foreign jurisdictions: “If it is constitutional for a State to define marriage as a relationship between a man and a woman, it is also constitutional for the State to stand by that definition with respect to couples married in other States or countries.” Id.

In a vigorous dissent, Judge Martha Craig Daughtrey derided the majority's argument that the Sixth Circuit is “bound by the eleven words in the order” in Baker v. Nelson. She cited the Supreme Court's lack of recognition of Baker in a string of related landmark decisions ' including Windsor ' in the 42 years since the summary order was handed down. Id . at 431 (Daughtrey, J., dissenting). She also rebutted the majority's insistence that the right to marry be left to the democratic process and not determined by judges:

The framers presciently recognized that two of the three co-equal branches of government were representative in nature and necessarily would be guided by self-interest and the pull of popular opinion. To restrain those natural, human impulses, the framers crafted Article III [creating the judicial branch] to ensure that rights, liberties, and duties need not be held hostage by popular whims.

Id. at 436 (Daughtrey, J., dissenting). And in concluding her dissent, she added that

[i]f we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.

Id. at 436-37 (Daughtrey, J., dissenting). (For a similar sentiment expressed in a same-sex marriage case, see Baskin v. Bogan, 766 F.3d 648, 671 (7th Cir. 2014) (per Posner, J.) (“Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.”).)

The Case Before the Supreme Court

The Supreme Court granted certiorari in the Sixth Circuit cases under the rubric of Obergefell v. Hodges (No. 14-556), the case from Ohio. In its order, the high Court cast the two questions it would decide:

1. Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
2. Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

83 U.S.L.W. at 3315.

The Court instructed the plaintiffs to limit their written and oral arguments to the specific issue or issues they had raised in their petitions. Thus, for example, plaintiffs who argued for the right to marry could only raise that issue, and plaintiffs seeking recognition of their marriage could only argue that issue. Bourke v. Beshear (No. 14-574), the case from Kentucky, involves both of the issues that the Court will decide. DeBoer, the Michigan case, involves the right to marry. Obergefell and the case from Tennessee, Tanco v. Haslam (No. 14-562), involve only the marriage recognition issue.

Among the arguments in their brief on the merits, the plaintiffs in Bourke compared the Kentucky ban on same-sex marriage with the Defense of Marriage Act (DOMA) that was held unconstitutional by the Court in Windsor:

Just as DOMA instructed married same-sex couples that “their marriage[s] [are] less worthy than the marriages of others,” ' Kentucky's ban tells same-sex couples and their children that their relationships are less worthy of respect than others. ' [And,] like [DOMA], Kentucky's marriage ban is born[] of moral disapproval of [same-sex] couples “whose moral and sexual choices the Constitution protects.” '

Bourke, Brief for Petitioners at 29 (citations omitted).

The plaintiffs in the Michigan case similarly argued that that state's “exclusion of same-sex couples from the freedom to marry denies [them] a basic dignity to which they are constitutionally entitled.” DeBoer, Brief for Petitioners at 29. Echoing sentiments expressed in Justice Anthony Kennedy's majority opinion in Windsor, the plaintiffs also argued that the Michigan ban on same-sex marriage

deprives same-sex couples of the dignity and common understanding that comes only with marriage as well as the substantial network of protections and reciprocal responsibilities afforded to married persons and their families. It harms children financially, legally, socially and psychologically. It stigmatizes and humiliates adults and children, it reduces the stability of relationships, and it deprives children of the protections of having two married parents.

Id. at 19.

In the cases seeking recognition of lawful out-of-state marriages, the plaintiffs also relied on Windsor to argue that same-sex couples are demeaned ' and denied basic dignity, in violation of the Constitution ' when their lawful marriages are not recognized by the state. In Obergefell, plaintiffs argued that

[Ohio's] recognition bans target the same narrow class of persons DOMA's “text” targeted. Windsor held that DOMA denied same-sex couples equal protection because DOMA's text evinced the design to “interfere[] with the equal dignity of same-sex marriages.” ' On its face, DOMA singled out “same-sex marriages made lawful by ' the States” for “restrictions and disabilities.” ' The plain text of Ohio's recognition bans, like DOMA's, singles out same-sex couples among all who married out of state and denies them the legal protections, security, and dignity of their marriages. The recognition bans' text therefore exhibits the constitutionally impermissible design to erase the dignity and status conferred on married same-sex couples by other states.

Obergefell, Brief for Petitioners at 21 (citations omitted). Similarly, the plaintiffs in Tanco argued that

[a]s with DOMA, Tennessee's Non-Recognition Laws and other states' similar laws “humiliate[] tens of thousands of children now being raised by same-sex couples” by making “it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” ' [Plaintiffs] have a reasonable fear that Tennessee's refusal to recognize their marriage will cause their daughter to internalize the message that she and her parents are second-class citizens and that their family is inferior, thus undermining the sense of stability that her parents' marriage should provide her.

Tanco, Brief for Petitioners at 49 (citations omitted).

The plaintiffs in the Tennessee case also invoked Supreme Court precedent and James Madison's Federalist No. 10 to rebut the Sixth Circuit majority's argument that the definition of marriage should be left to the democratic process:

[P]ublic sentiment, as expressed in a popular vote, cannot be used to justify depriving petitioners of their fundamental right to continue their marriages. When fundamental rights are at stake, “[a] citizen's constitutional rights can hardly be infringed simply because a majority of the people choose that it be.” ' “[T]he freedom to marry ' resides with the individual and cannot be infringed by the State.” ' Denying this constitutional right to same-sex couples is thus more than a political choice; it is “the superior force of an interested and overbearing majority” trampling “the rules of justice and the rights of the minor party.” ' It is the responsibility of the judiciary to protect minorities, like the same-sex couples in this case, against such unlawful exercise of governmental power. '

Id. at 53 (citations omitted).

In opposition, the States ' as the Sixth Circuit majority had done in its opinion ' relied on Windsor to support their position that the people of each state should determine who may marry and whose marriage should be recognized. Kentucky, for instance, argued that the Court in Windsor had “affirmed a state's independent sovereign authority to offer same-sex marriage licenses based upon the 'formation of consensus' of the citizens of that state” and that “[t]he corollary of that holding is that a state, likewise, based upon the 'formation of consensus' of its citizens, may also in the exercise of its sovereign authority elect not to offer or recognize same-sex marriage licenses.” Bourke, Brief for Respondent at 8.

Michigan similarly defended its ban on same-sex marriage, arguing that “the proper recourse to resolving disagreements in a democracy is continued discussion and resolution through the voting process. The proper recourse is not to the federal courts, but to the people. That is how American democracy is supposed to work.” DeBoer, Brief for the Respondents at 28. Michigan cited numerous examples in the Windsor decision where the Supreme Court alluded to the states' sovereign choice to decide who may marry (id. at 44-45) , concluding that “[t]he wisdom of Windsor is its recognition of the respect due to the people's choices about how to define marriage ' the very principle that Michigan seeks to vindicate here.” Id. at 45.

The State of Ohio spent much of its brief arguing that, under Windsor , marriage recognition determinations should be left to the democratic process. See Obergefell, Brief for Respondent at 11-35. Indeed, Ohio noted that it began its argument with an analysis of Windsor “because [that decision] best shows that this issue belongs with communities for collaborative resolution through vibrant democratic debate and consensus.” Id. at 10. Ohio continued that theme in its secondary argument, asserting that ” Windsor 's specific teachings about the States' role and power to define marriage are confirmed by standard Fourteenth Amendment principles, which leave same-sex-marriage recognition to each State's democratic processes.” Id. at 35-36.

The respondents in Tanco argued that Windsor does not support the plaintiffs' claimed right to have their out-of-state marriage recognized by the State of Tennessee. Id., Brief of Respondents at 7. On the contrary, they argued, “[u]nlike the situation in Windsor , [plaintiffs'] claim [in Tanco ] implicates the sovereign power of another State, Tennessee, to define the marital relation within its own borders.” Id. And, of course, Tennessee argued that it “is not required to recognize ' out-of-state same-sex marriages because [the State's] own marriage policy” ' defining marriage as the union of a man and a woman ' “is indeed legitimate.” I . at 8.

The Oral Arguments

The Supreme Court heard 2' hours of oral argument on April 28, 2015. (Transcripts of the arguments on the two questions before the Court ' 1) whether states must allow same-sex couples to marry; and 2) whether states must recognize legal out-of-state same-sex marriages ' are available on the Court's website: http://1.usa.gov/1H9BEZx (“Ques. 1 Tr.”) and http://1.usa.gov/1Et8qSc'(“Ques. 2 Tr.”).)

Not unexpectedly, the Court's conservative Justices expressed skepticism of petitioners' argument that same-sex couples must be permitted to “join in” the institution of marriage that long has been available to couples who are heterosexual. As the Chief Justice put it, “you're not seeking to join the institution, you're seeking to change what the institution is.” Ques. 1 Tr. at 5. Justice Kennedy, regarded as the swing vote on the Court in matters involving the rights of gays and lesbians, also seemed reluctant to change the traditional definition of marriage ' a definition, he noted, that “has been with us for millennia” ' based on about 10 years of experience with legal same-sex marriage in the United States. Id. at 7.

Even liberal Justices asked questions that suggested a reluctance on their part to change the definition of marriage in derogation of the democratic process. Justice Stephen Breyer noted, for instance, that the traditional definition of marriage “has been the law everywhere for thousands of years” and that petitioners now “suddenly” want the nine Justices ' “outside the ballot box” ' to change that definition to include gay people. Id. at 16. Why, Justice Breyer asked, cannot the states that oppose same-sex marriage “wait and see” whether permitting same-sex couples to marry in other states is harmful to the institution of marriage? Id.

U.S. Solicitor General Donald B. Verrilli, as amicus in support of petitioners, argued that “[t]he opportunity to marry is integral to human dignity” and that the exclusion of same-sex couples from marriage demeans those couples. Id. at 29. He also addressed Justice Breyer's “wait and see” question as well as the argument that the right to marry should be left to the democratic process:

[I]f this Court concludes that this issue should be left to the political process, what the Court will be saying is that the demeaning, second-class status that gay and lesbian couples now inhabit in ' States that do not provide for [their] marriage is consistent with the equal protection of the laws.

Id. Such a ruling by the Court, Verrilli added, would not be “wait-and-see”; it would be a validation of the demeaning of same-sex couples.

Verrilli also responded to the idea that the question of who may marry should be left to “the people” to decide at a later date. He argued that same-sex couples are “laying claim to the promise of the Fourteenth Amendment now” and that it is the Court's duty to decide what that amendment requires. Id. at 40 (emphasis added).

John J. Bursch, representing the State of Michigan, argued that the issue before the Court is not how to define marriage, but who gets to decide what marriage is. Id. at 41. Urging that the people of the states should decide the issue, he argued that Michigan has an interest in maintaining the traditional definition of marriage in order to preserve a view of marriage that is procreation-centric. To do otherwise, Bursch urged, would be to “delink” children from their biological parents. See id. at 45. Justice Kennedy rejected the notion that only opposite-sex couples can “have a bonding” with their children, calling it “just a wrong premise.” Id. at 65.

Justice Elena Kagan countered Bursch's argument that the definition of marriage should be left to the democratic process rather than imposed by the federal courts. She noted that “we live in a constitutional democracy,” that “the Constitution imposes limits on what people can do” and that it is the Justices of the Court who have to decide what those limits are. Id. at 74.

Counsel arguing the marriage recognition question had trouble keeping that question separate from the first. Ultimately, the essence of the states' argument was that no state should be forced to recognize a marriage that is contrary to its own public policy. See Ques. 2 Tr. at 43-44. In rebuttal, petitioners' attorney crystallized the same-sex-couples' argument with concrete examples of the adverse impact on “real people” ' like the married lesbian plaintiffs in Tanco ' imposed by the non-recognition laws at issue. He noted, for instance, that under the Tennessee law that does not recognize plaintiffs' marriage, when their daughter is hospitalized, the non-biological mother would be treated “as a legal stranger with no right to visit her child [and] no right to make medical decisions for her.” Id. at 46.

Observers found few surprises in the Justices' questions but even fewer definitive clues on how some of the Justices will rule. Justice Kennedy, the anticipated swing vote, particularly asked hard questions of both sides and made remarks that could give both sides fear and hope as they await the Court's ruling. The suspense is expected to end in a few weeks, when the Court decides whether same-sex couples have a constitutional right to marry in every state or to have their marriages recognized in any state where they choose to live.

Frank Gulino, Of Counsel to Silver & Kelmachter, LLP, in New York City, is a member of this newsletter's Board of Editors as well as the ABA's Council of Appellate Lawyers.

A dozen years ago, there was not a state in the nation where same-sex partners could legally marry. Since then, same-sex marriage has been legalized, either by court ruling, legislation or referendum, in 37 of the 50 states and the District of Columbia. (In one of the 37 states, Alabama, the state's highest court issued an order on March 3, 2015, prohibiting the issuance of marriage licenses to same-sex couples. The order came after a federal district court struck down Alabama's ban on gay marriage and more than 500 same-sex couples were married in the state.) Now, the U.S. Supreme Court is poised to decide whether any state may prohibit same-sex marriages ' or decline to recognize such marriages ' without running afoul of the federal Constitution. A decision is expected late this month.

Last October, as it opened its current Term, the Supreme Court declined to hear any of the cases, stemming from the Fourth, Seventh and Tenth Circuits, in which state bans on same-sex marriage were held unconstitutional. The following day, the Ninth Circuit joined its sister courts and invalidated the state bans on same-sex marriage that were before it. Reacting to questions about the high Court's denial of certiorari, Justice Ruth Bader Ginsberg remarked that there was “no crying need” for the Court to weigh in on the same-sex marriage issue in the absence of a split among the circuits. (For a discussion of those cases and Justice Ginsberg's remarks, see F. Gulino, “No Need to Rush”: As State Bans on Same-sex Marriage Continue to Fall, the Supreme Court Dodges the Issue (for Now), The Matrimonial Strategist , Nov. 2014 (online version), http://bit.ly/1PdHhx7.) Such a circuit split was just around the corner.

In a 2-1 decision handed down on Nov. 6, 2014, the Sixth Circuit became the first federal appeals court to uphold laws banning same-sex marriage (and the recognition of such marriages) in cases from Kentucky, Michigan, Ohio and Tennessee. The ruling created precisely the kind of circuit split that usually attracts the interest of the high Court, and this was no exception: Early in the new year, the Justices agreed to hear those cases, to determine whether states have the power to ban same-sex marriage or deny recognition to such marriages entered legally in other jurisdictions. DeBoer v. Snyder , 772 F.3d 388 (6th Cir. 2014), cert. granted , 83 U.S.L.W. 3315 (U.S. Jan. 16, 2015) (No. 14-571).

The Sixth Circuit Decision on Appeal

In upholding the state laws before it that prohibit same-sex marriage (or the recognition of such marriages), the Sixth Circuit relied in part on the Supreme Court's summary order in Baker v. Nelson , 409 U.S. 810 (1972). In Baker, the high Court had rejected an appeal by a same-sex couple who challenged Minnesota's then-ban on gay marriage for what the Court called the want of a substantial federal question. Pointing out that Baker has never been explicitly overruled, the Sixth Circuit majority declared that “[n]ot one of the plaintiffs' theories ' makes the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters.” DeBoer, 772 F.3d at 403.

Writing for the majority, Judge Jeffrey Sutton also used the Supreme Court's landmark decision in United States v. Windsor , 133 S. Ct. 2675 (2013) ' the decision relied upon by dozens of other federal courts to strike down same-sex marriage bans ' to support the view that the definition of marriage should be left to the states and the democratic process. Discussing the traditional role of the states in defining marriage, Judge Sutton wrote that “[r]espect for democratic control over this traditional area of state expertise ensures that 'a statewide deliberative process that enable[s] its citizens to discuss and weigh arguments for and against same-sex marriage' can have free and reasonable rein.” 772 F.3d at 408 (quoting Windsor, 133 S. Ct. at 2689).

The Sixth Circuit also rejected the argument that same-sex couples are entitled to marry as a constitutional right because of the loss of dignity they and their children suffer as a result of state laws forbidding them to marry. While the court noted that “there is much to be said for 'dignity and respect' in the eyes of the Constitution and its interpreters,” the court also declared that “any loss of dignity and respect on this issue did not come from the Constitution.” 772 F.3d at 417. And it added that “[f]aith in democracy with respect to issues that the Constitution has not committed to the courts reinforces a different, more sustainable norm” than an unchecked expansion of constitutional rights through judicial decisions. Id. at 418.

Having determined that states do have the right to define marriage as the union of a man and a woman, the Sixth Circuit also ruled that states have the concomitant right to deny recognition to same-sex marriages entered into in foreign jurisdictions: “If it is constitutional for a State to define marriage as a relationship between a man and a woman, it is also constitutional for the State to stand by that definition with respect to couples married in other States or countries.” Id.

In a vigorous dissent, Judge Martha Craig Daughtrey derided the majority's argument that the Sixth Circuit is “bound by the eleven words in the order” in Baker v. Nelson. She cited the Supreme Court's lack of recognition of Baker in a string of related landmark decisions ' including Windsor ' in the 42 years since the summary order was handed down. Id . at 431 (Daughtrey, J., dissenting). She also rebutted the majority's insistence that the right to marry be left to the democratic process and not determined by judges:

The framers presciently recognized that two of the three co-equal branches of government were representative in nature and necessarily would be guided by self-interest and the pull of popular opinion. To restrain those natural, human impulses, the framers crafted Article III [creating the judicial branch] to ensure that rights, liberties, and duties need not be held hostage by popular whims.

Id. at 436 (Daughtrey, J., dissenting). And in concluding her dissent, she added that

[i]f we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.

Id . at 436-37 (Daughtrey, J., dissenting). (For a similar sentiment expressed in a same-sex marriage case, see Baskin v. Bogan , 766 F.3d 648, 671 (7th Cir. 2014) (per Posner, J.) (“Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.”).)

The Case Before the Supreme Court

The Supreme Court granted certiorari in the Sixth Circuit cases under the rubric of Obergefell v. Hodges (No. 14-556), the case from Ohio. In its order, the high Court cast the two questions it would decide:

1. Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
2. Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

83 U.S.L.W. at 3315.

The Court instructed the plaintiffs to limit their written and oral arguments to the specific issue or issues they had raised in their petitions. Thus, for example, plaintiffs who argued for the right to marry could only raise that issue, and plaintiffs seeking recognition of their marriage could only argue that issue. Bourke v. Beshear (No. 14-574), the case from Kentucky, involves both of the issues that the Court will decide. DeBoer, the Michigan case, involves the right to marry. Obergefell and the case from Tennessee, Tanco v. Haslam (No. 14-562), involve only the marriage recognition issue.

Among the arguments in their brief on the merits, the plaintiffs in Bourke compared the Kentucky ban on same-sex marriage with the Defense of Marriage Act (DOMA) that was held unconstitutional by the Court in Windsor:

Just as DOMA instructed married same-sex couples that “their marriage[s] [are] less worthy than the marriages of others,” ' Kentucky's ban tells same-sex couples and their children that their relationships are less worthy of respect than others. ' [And,] like [DOMA], Kentucky's marriage ban is born[] of moral disapproval of [same-sex] couples “whose moral and sexual choices the Constitution protects.” '

Bourke, Brief for Petitioners at 29 (citations omitted).

The plaintiffs in the Michigan case similarly argued that that state's “exclusion of same-sex couples from the freedom to marry denies [them] a basic dignity to which they are constitutionally entitled.” DeBoer, Brief for Petitioners at 29. Echoing sentiments expressed in Justice Anthony Kennedy's majority opinion in Windsor, the plaintiffs also argued that the Michigan ban on same-sex marriage

deprives same-sex couples of the dignity and common understanding that comes only with marriage as well as the substantial network of protections and reciprocal responsibilities afforded to married persons and their families. It harms children financially, legally, socially and psychologically. It stigmatizes and humiliates adults and children, it reduces the stability of relationships, and it deprives children of the protections of having two married parents.

Id. at 19.

In the cases seeking recognition of lawful out-of-state marriages, the plaintiffs also relied on Windsor to argue that same-sex couples are demeaned ' and denied basic dignity, in violation of the Constitution ' when their lawful marriages are not recognized by the state. In Obergefell, plaintiffs argued that

[Ohio's] recognition bans target the same narrow class of persons DOMA's “text” targeted. Windsor held that DOMA denied same-sex couples equal protection because DOMA's text evinced the design to “interfere[] with the equal dignity of same-sex marriages.” ' On its face, DOMA singled out “same-sex marriages made lawful by ' the States” for “restrictions and disabilities.” ' The plain text of Ohio's recognition bans, like DOMA's, singles out same-sex couples among all who married out of state and denies them the legal protections, security, and dignity of their marriages. The recognition bans' text therefore exhibits the constitutionally impermissible design to erase the dignity and status conferred on married same-sex couples by other states.

Obergefell, Brief for Petitioners at 21 (citations omitted). Similarly, the plaintiffs in Tanco argued that

[a]s with DOMA, Tennessee's Non-Recognition Laws and other states' similar laws “humiliate[] tens of thousands of children now being raised by same-sex couples” by making “it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” ' [Plaintiffs] have a reasonable fear that Tennessee's refusal to recognize their marriage will cause their daughter to internalize the message that she and her parents are second-class citizens and that their family is inferior, thus undermining the sense of stability that her parents' marriage should provide her.

Tanco, Brief for Petitioners at 49 (citations omitted).

The plaintiffs in the Tennessee case also invoked Supreme Court precedent and James Madison's Federalist No. 10 to rebut the Sixth Circuit majority's argument that the definition of marriage should be left to the democratic process:

[P]ublic sentiment, as expressed in a popular vote, cannot be used to justify depriving petitioners of their fundamental right to continue their marriages. When fundamental rights are at stake, “[a] citizen's constitutional rights can hardly be infringed simply because a majority of the people choose that it be.” ' “[T]he freedom to marry ' resides with the individual and cannot be infringed by the State.” ' Denying this constitutional right to same-sex couples is thus more than a political choice; it is “the superior force of an interested and overbearing majority” trampling “the rules of justice and the rights of the minor party.” ' It is the responsibility of the judiciary to protect minorities, like the same-sex couples in this case, against such unlawful exercise of governmental power. '

Id. at 53 (citations omitted).

In opposition, the States ' as the Sixth Circuit majority had done in its opinion ' relied on Windsor to support their position that the people of each state should determine who may marry and whose marriage should be recognized. Kentucky, for instance, argued that the Court in Windsor had “affirmed a state's independent sovereign authority to offer same-sex marriage licenses based upon the 'formation of consensus' of the citizens of that state” and that “[t]he corollary of that holding is that a state, likewise, based upon the 'formation of consensus' of its citizens, may also in the exercise of its sovereign authority elect not to offer or recognize same-sex marriage licenses.” Bourke, Brief for Respondent at 8.

Michigan similarly defended its ban on same-sex marriage, arguing that “the proper recourse to resolving disagreements in a democracy is continued discussion and resolution through the voting process. The proper recourse is not to the federal courts, but to the people. That is how American democracy is supposed to work.” DeBoer, Brief for the Respondents at 28. Michigan cited numerous examples in the Windsor decision where the Supreme Court alluded to the states' sovereign choice to decide who may marry (id. at 44-45) , concluding that “[t]he wisdom of Windsor is its recognition of the respect due to the people's choices about how to define marriage ' the very principle that Michigan seeks to vindicate here.” Id. at 45.

The State of Ohio spent much of its brief arguing that, under Windsor , marriage recognition determinations should be left to the democratic process. See Obergefell, Brief for Respondent at 11-35. Indeed, Ohio noted that it began its argument with an analysis of Windsor “because [that decision] best shows that this issue belongs with communities for collaborative resolution through vibrant democratic debate and consensus.” Id. at 10. Ohio continued that theme in its secondary argument, asserting that ” Windsor 's specific teachings about the States' role and power to define marriage are confirmed by standard Fourteenth Amendment principles, which leave same-sex-marriage recognition to each State's democratic processes.” Id. at 35-36.

The respondents in Tanco argued that Windsor does not support the plaintiffs' claimed right to have their out-of-state marriage recognized by the State of Tennessee. Id., Brief of Respondents at 7. On the contrary, they argued, “[u]nlike the situation in Windsor , [plaintiffs'] claim [in Tanco ] implicates the sovereign power of another State, Tennessee, to define the marital relation within its own borders.” Id. And, of course, Tennessee argued that it “is not required to recognize ' out-of-state same-sex marriages because [the State's] own marriage policy” ' defining marriage as the union of a man and a woman ' “is indeed legitimate.” I . at 8.

The Oral Arguments

The Supreme Court heard 2' hours of oral argument on April 28, 2015. (Transcripts of the arguments on the two questions before the Court ' 1) whether states must allow same-sex couples to marry; and 2) whether states must recognize legal out-of-state same-sex marriages ' are available on the Court's website: http://1.usa.gov/1H9BEZx (“Ques. 1 Tr.”) and http://1.usa.gov/1Et8qSc'(“Ques. 2 Tr.”).)

Not unexpectedly, the Court's conservative Justices expressed skepticism of petitioners' argument that same-sex couples must be permitted to “join in” the institution of marriage that long has been available to couples who are heterosexual. As the Chief Justice put it, “you're not seeking to join the institution, you're seeking to change what the institution is.” Ques. 1 Tr. at 5. Justice Kennedy, regarded as the swing vote on the Court in matters involving the rights of gays and lesbians, also seemed reluctant to change the traditional definition of marriage ' a definition, he noted, that “has been with us for millennia” ' based on about 10 years of experience with legal same-sex marriage in the United States. Id. at 7.

Even liberal Justices asked questions that suggested a reluctance on their part to change the definition of marriage in derogation of the democratic process. Justice Stephen Breyer noted, for instance, that the traditional definition of marriage “has been the law everywhere for thousands of years” and that petitioners now “suddenly” want the nine Justices ' “outside the ballot box” ' to change that definition to include gay people. Id. at 16. Why, Justice Breyer asked, cannot the states that oppose same-sex marriage “wait and see” whether permitting same-sex couples to marry in other states is harmful to the institution of marriage? Id.

U.S. Solicitor General Donald B. Verrilli, as amicus in support of petitioners, argued that “[t]he opportunity to marry is integral to human dignity” and that the exclusion of same-sex couples from marriage demeans those couples. Id. at 29. He also addressed Justice Breyer's “wait and see” question as well as the argument that the right to marry should be left to the democratic process:

[I]f this Court concludes that this issue should be left to the political process, what the Court will be saying is that the demeaning, second-class status that gay and lesbian couples now inhabit in ' States that do not provide for [their] marriage is consistent with the equal protection of the laws.

Id. Such a ruling by the Court, Verrilli added, would not be “wait-and-see”; it would be a validation of the demeaning of same-sex couples.

Verrilli also responded to the idea that the question of who may marry should be left to “the people” to decide at a later date. He argued that same-sex couples are “laying claim to the promise of the Fourteenth Amendment now” and that it is the Court's duty to decide what that amendment requires. Id. at 40 (emphasis added).

John J. Bursch, representing the State of Michigan, argued that the issue before the Court is not how to define marriage, but who gets to decide what marriage is. Id. at 41. Urging that the people of the states should decide the issue, he argued that Michigan has an interest in maintaining the traditional definition of marriage in order to preserve a view of marriage that is procreation-centric. To do otherwise, Bursch urged, would be to “delink” children from their biological parents. See id. at 45. Justice Kennedy rejected the notion that only opposite-sex couples can “have a bonding” with their children, calling it “just a wrong premise.” Id. at 65.

Justice Elena Kagan countered Bursch's argument that the definition of marriage should be left to the democratic process rather than imposed by the federal courts. She noted that “we live in a constitutional democracy,” that “the Constitution imposes limits on what people can do” and that it is the Justices of the Court who have to decide what those limits are. Id. at 74.

Counsel arguing the marriage recognition question had trouble keeping that question separate from the first. Ultimately, the essence of the states' argument was that no state should be forced to recognize a marriage that is contrary to its own public policy. See Ques. 2 Tr. at 43-44. In rebuttal, petitioners' attorney crystallized the same-sex-couples' argument with concrete examples of the adverse impact on “real people” ' like the married lesbian plaintiffs in Tanco ' imposed by the non-recognition laws at issue. He noted, for instance, that under the Tennessee law that does not recognize plaintiffs' marriage, when their daughter is hospitalized, the non-biological mother would be treated “as a legal stranger with no right to visit her child [and] no right to make medical decisions for her.” Id. at 46.

Observers found few surprises in the Justices' questions but even fewer definitive clues on how some of the Justices will rule. Justice Kennedy, the anticipated swing vote, particularly asked hard questions of both sides and made remarks that could give both sides fear and hope as they await the Court's ruling. The suspense is expected to end in a few weeks, when the Court decides whether same-sex couples have a constitutional right to marry in every state or to have their marriages recognized in any state where they choose to live.

Frank Gulino, Of Counsel to Silver & Kelmachter, LLP, in New York City, is a member of this newsletter's Board of Editors as well as the ABA's Council of Appellate Lawyers.