Andersen’s book, Out of the Closets and into the Courts: Legal Opportunity Structure and Gay Rights Litigation, explores the promise and limits of legal mobilization as a tactic for advancing gay rights claims. In a recent interview, Andersen gave her perceptive on the Supreme Court’s decision to take up what many consider the top civil rights issue in a generation and the potential outcomes she expects.
UVM Today: Are you surprised at the timing of the Supreme Court to take on same-sex marriage?
Andersen: No, not at all. I think that we were all surprised that the Supreme Court turned down the first opportunity to take a marriage case in October, given the prominence of the issue. However, back in October, every single circuit court that had decided a marriage case had ruled that the federal Constitution requires states to permit same-sex couples. What happened between October 2014 and January 2015 is that the Sixth Circuit ruled that states could restrict marriage to opposite-sex couples. Once the Sixth Circuit came down with an adverse ruling it would have been damn near impossible for the Supreme Court not to have taken this case, because when there’s a circuit split on something of this profound importance the Court can’t justifiably ignore it.
I do think the justices on the Supreme Court were surprised that the issue came back to them so soon. Less than two years ago the court had decided a case called United States v. Windsor. In that case, the court struck down part of the Defense of Marriage Act — the part that said the federal government would only recognize opposite-sex marriages. Windsor said that the federal government was constitutionally required to recognize legal marriages between same-sex couples. So, for example, my wife and I are legally married in Vermont. Windsor says that the federal government has to recognize that marriage. I think the justices probably thought that it would take some time for the various implications of Windsor to play out in the lower courts. I doubt any of them expected that courtrooms across the country would be inundated with same-sex marriage cases and that the cases would work their way up to the Supreme Court so quickly.
Speaking historically though, the marriage equality movement has advanced more rapidly than any other movement I can remember. It is an extraordinary change in public policy and public opinion in a shockingly short period of time. Think about it. No court in the land seriously contemplates the notion that same-sex couples have a right to marry until 1993 in Hawaii, although the case itself is pre-empted by the passage of a constitutional amendment in Hawaii that restricted decision-making about marriage to the legislature. Fast-forward a few years and you get civil unions in Vermont, which was a big deal in 2000, but not as big as the Massachusetts decision in 2003 that clearly said ‘Same-sex couples have to be allowed to marry.’ Civil unions are one thing, but marriage is a big word for a lot of people. So now states go bonkers and are like ‘Oh no, the world is changing in front of us, and now all of our people are going to go to Massachusetts and get married and come back,' so all these states start to pass constitutional laws barring same-sex marriage. I mean, 13 states amended their constitutions in 2004 alone, and within a few years we’ve got about 30 states with those kinds of constitutional amendments; that’s a pretty big blowback. Fast forward to today and we have 36 marriage equality states plus the District of Columbia. That’s pretty amazing.
How do you expect the Supreme Court to rule? We all have our guesses. Mine goes like this: Everybody is wondering what Anthony Kennedy will do, and we’re not quite sure. Justice Kennedy has written all of the major gay rights decisions, including Windsor, so all eyes are on him. Whatever the decision, it will likely come down 5-4. Kennedy gets the essential dignity of same-sex relationships, and he’s made it clear in that he truly understands that there is as much of a dignity interest in the pursuit of those relationships as there is in any heterosexual relationship. As long as he holds onto that principle it becomes hard for him to decide that that dignity interest falls short.
What’s tricky is that Kennedy’s opinion in Windsor can be read in two different ways. It seems to say that federal government’s refusal to recognize same-sex marriages violates the 14th Amendment’s guarantee of equal protection of the law. If that’s the case, it would seem that states would also have to recognize same-sex marriages under the 14th Amendment. This is how nearly every lower court judge has interpreted Windsor to-date. But there’s also language in Windsor that suggests that states control what marriage is and that the federal government can’t superimpose its definition in ways that diminish the states' definition. If the federalism ground is the controlling ground, then there is no logical reason to say that states can’t decide whether or not to let same-sex couples marry. So if I’m right that Kennedy is the controlling vote, he’s going to have to balance the dignity interests of same-sex couples against states' rights, both of which matter to him. I’m betting that the dignity interest wins.
It’s worth noting that the Supreme Court is ruling on two questions: The first question is whether the 14th Amendment requires states to permit same-sex couples to marry. The second question is whether states have to recognize same-sex marriages performed in other states as valid. So for example, if my wife and I move to Michigan, does Michigan have to recognize our marriage, even though its constitution limits marriage to opposite-sex couples? If the answer to the first question – do states have to celebrate marriages – is yes, then the second question is moot. If the answer to the first question is no, then and only then, does the second question become important. So there are really three possible outcomes: states will have to both celebrate and recognize same-sex marriages; states won’t have to celebrate nor to recognize; or states won’t have to celebrate, but will have to recognize.
I think that the most likely answer is a requirement that states have to both celebrate and recognize. But if the ruling is that states have to recognize same-sex marriages from other states, but don’t have to permit their own citizens to marry, we’re going to have a real mess on our hands. For one thing, there are a lot of states that only have marriage equality because the federal courts forced them to. They’ll almost certainly revert back to a heterosexual-only marriage regime. But what about the same-sex couples who already got married in those states? Are their marriages still valid? What if one member of the couple has already died, which I know has happened in Utah. Married couples basically inherit from each other tax free; unmarried couples don’t. And there are tons of questions like this that will have to be answered, including whether states will be able to prevent their own citizens from traveling out of state to marry and then returning home and demanding recognition? It’d really be a legal nightmare.
If your predictions come true, do you anticipate any challenges or lines of defense?Oh, sure. If the Supreme Court requires marriage equality, we can expect to see a spike in the religious liberty defense. Recently, we’ve seen a lot of claims that people’s religious liberty interests are being infringed by state anti-discrimination laws. For some reason, a lot of the cases have to do with refusals of bakers to make wedding cakes for same-sex couples or refusals of photographers to photograph same-sex weddings. A number of states are debating bills that would allow individual businesses to refuse service when providing that service would go against their religious beliefs. The Supreme Court has often, but not always, been friendly toward 1st Amendment religious liberty interests, so it’s hard to say how this line of argument will play out.
And if I’m wrong, and the Supreme Court rules against marriage equality, marriage equality activists will have to go back to fighting the battle state by state, either through the legislature or the ballot box. But I think that public attitudes about marriage equality have changed so dramatically in recent years that we’ll still see a large swath of the country in which same-sex couples can marry, and that we’ll still see continued movement on the issue. I have no doubt that marriage equality will become the law of the land. The only question is the timing.
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