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What role should the law have in deciding who marries whom? On one level this question is about same-sex marriage, but it is also about the power of law to influence individual behavior and choices. In the case of marriage, it is not so clear that the law really does affect individual decisions, but it does determine whether one has an initial choice regarding whether to wed. Whatever the Supreme Court does decide about the rights of gays and lesbians to wed, there will be many tough questions remaining regarding the role of the law regarding marriage and the how individuals define for themselves what it means to be a family.
What will the Supreme Court do?
To begin with, after two days of arguments before the Supreme Court in March, what are the prospects for legalization of same-sex marriage across the United States? The best guess right now is that there are not five votes to strike down all bans on same-sex marriage across the country, or to legalize it, but that instead potential inaction by the Supreme Court may be one of the best things to happen for those who support the right of gays and lesbians to wed.
First look at the California Prop 8 case. The California Supreme Court declared that a state law denying same-sex couples the right to marry is unconstitutional. Prop 8 is then adopted by voters to overturn that ruling. Prop 8 is then challenged in federal district court and it is declared unconstitutional. The 9th Circuit on appeal agrees, ruling narrowly that once rights have been granted they cannot be retracted for some group without violating the Equal Protection clause.
However what makes the California case interesting is that the State of California refused to defend Prop 8 on appeal. Instead, the district court let some of the supporters of Prop 8 intervene to defend it. This is where the problems begin.
During oral arguments the Supreme Court asked whether supporters of Prop 8 had a right to bring the suit. The Court said that the appropriate party to defend Prop 8 was the State and that these individuals lacking standing to bring the case. Moreover, several members of the Court also wondered whether these supporters had suffered any injury in fact or law. By that, can they show how same-sex marriages harm them or traditional marriages? The Court seem unconvinced by their answers.
The standing and injury issues are important. If there is no standing or injury, the case would be dismissed. If dismissed, the lower court decision would stand, thereby invalidating Prop 8, and therefore by default legalizing same-sex marriage in California. Six of the Supreme Court Justices suggested this is a possible direction they may go. Effectively, they are closing the door of the federal courts and that may work to the benefit of advocates of same-sex marriage.
The same closing of a door may also work to the advantage of the same-sex marriage in the DOMA case. Here, the challenge is to the 1996 federal DOMA law denying federal benefits to same-sex couples even in states where such marriages are recognized. But again there is an oddity to this case–the Obama administration has refused to support the constitutionality of the law in court and instead is arguing against it while still enforcing the law. The law is defended by the Republican Leadership in the U.S. House of Representatives and not by the president (whose job it is to defend federal laws).
Why is this significant? There may not be a case or controversy here. If no one is defending the law then the case gets dismissed. Several Justices expressed concern about this along with concerns about standing. Given that a lower court had ruled against DOMA, refusal of the Supremes to rule on this case may mean that the lower court decision stands and DOMA is gone.
These procedural issues are important and may work to the benefit of same-sex marriage supporters. It is clear the Roberts Court wants not to rule on these cases. Yes, there are some Justices who would rule that bans on same-sex marriage are unconstitutional. But it is not clear that there are five votes to do that. The nature of the facts in these two cases make it difficult to reach this kind of ruling. Do not expect either of these two cases to be clear rulings similar to Loving v. Virginia that declared that bans on mixed-race marriages were unconstitutional. The Court here could use standing, injury, or other legal concepts to throw out the cases. What would that mean? Prop 8 is gone and same-sex marriage in California is legal and the DOMA is unconstitutional. This may not be the bigger ruling many want, but it is a long way toward constitutional recognition of same-sex marriage.
But does the law matter?
Regardless of what the Court does, one of the most interesting points to emerge from the debates on the constitutionality of DOMA was to find out that there are approximately 7,000 federal laws that affect the rights of married couples. These are laws about federal benefits, including the filing of taxes, survivor benefits, and other government largess. Same-sex marriage proponents argue that it is constitutionally wrong to deny gays and lesbian couples the opportunity to share in these benefits. But should DOMA be struck and same-sex marriage be legalized, opponents argue that it will hurt traditional marriages. Both sides of the marriage debate assume the law makes a difference in who or whether people will marry.
On one level that is true. Denying same-sex couples the legal right to marry prevents them from even exercising the initial choice of whether to marry. It is favoring one type of family unit over others. This is the real problem–all adults should be given the same right to make the choice whether they want to marry–even if they opt not to. As Dick Cheney has stated: “Freedom means freedom for everyone.”
But were gays and lesbians given the chance to choose it is not clear how many will exercise it. While marriage brings many legal benefits, even among opposite sex couples, many choose not to marry. The percentage of married households continues to drop as alternative family structures emerge. This suggests that the law might have a relatively minor impact in terms of defining or determining social relationships such as what it means to be a family. People are choosing their own living relationships and on one level the law and the benefits it delivers seem tangential to their choices. Finally, in oral arguments, it became clear that there is no evidence that recognition of same-sex marriage hurts traditional marriages, and the experiences from the states so far legalizing the former confirm that.
What all this raises is an interesting question about what role the law does or should play in defining family or marriage. Even if one wants to argue there are good reasons to support marriage as the preferred family structure, it is not so clear that the law has much importance in encouraging it. The government may have a legitimate interest in preventing fraud and exploitation and therefore rules regarding eligibility for government benefits, devising property, and banning polygamy are reasonable. But the limits of the law should be to maximize choice; beyond that it is not clear what the law can or should do.
Does this mean the law should be neutral regarding marriage? That is perhaps the next debate. But finally, even if the law should take a stance on marriage, the question is whether it really does affect individual choices. These are all very difficult questions that need to be addressed regardless of what the Supreme Court decides about same-sex marriage.
Author: David Schultz is a professor in the school of business at Hamline University. He can be reached at [email protected]