By Steve Mazie


GROUCHO MARX thumbed his prodigious nose at any club that would have him as a member. The plaintiffs in four cases to be argued at the Supreme Court on April 28th take another view. Lawyers for April DeBoer, Jayne Rowse, Gregory Bourke, Timothy Love and a number of other gay and lesbian Americans will ask the justices to strike down their states’ bans on same-sex marriage. They will argue that the federal constitution protects their wish to marry, no matter what their state’s laws or constitutions may say.


The eight merits briefs in these four cases, which will be known collectively as Obergefell v Hodges, weigh in at nearly 550 pages. Add in the dozens of amicus briefs from people and organisations who feel they have a stake in the outcome, and the justices (and journalists) have quite a lot of reading to do. But the central arguments are few and clear enough to sum up in a couple of blog posts. Here we survey the main arguments from the lawyers representing the gay and lesbian couples who want to get married. Next week, we will look at the states’ defences of their marriage bans.


The central issue is whether state bans on same-sex marriage, and state laws that refuse to recognise gay weddings performed in other states, comport with the federal constitution. Plaintiffs from Ohio, Michigan, Kentucky and Tennessee, where the Sixth Circuit Court upheld 

marriage and recognition bans, contend that the policies violate the 14th amendment, which guarantees “equal protection” and “due process” under the law. They argue that the laws demean gay couples, deprive them of essential benefits and violate their “fundamental right” to marry.


The pleadings are sprinkled with accounts of gay Americans being denied recognition as married couples. The harms are both expressive (relegating gays to “second-tier status” whose “families are less worthy than other people’s families,” as the Kentucky brief puts it) and tangible (preventing joint adoption, health-care proxies, medical visitation and inheritance rights, among other offences). Among the many stories used to illustrate these misdeeds, one of the most stunning is that of James Obergefell and John Arthur, who had “built a life together” for 29 years before Mr Arthur was diagnosed, in 2011, with ALS, or Lou Gehrig’s disease:


[T]he couple resolved to marry before John died. Because Ohio would not permit them to marry, family and friends opened their hearts and wallets so the couple could travel to Maryland on a medically-equipped plane and marry there. On July 11, 2013, with John too ill to move any further, they were wed inside the plane as it sat on the Baltimore tarmac. It was a joyous moment, but cruelly short-lived. When their plane touched back down in Ohio, the state‘s recognition bans effectively annulled their marriage for all state law (and some federal law) purposes. The distraught couple realized that unless they obtained a court order, John‘s death certificate, his final record as a person and as a citizen of Ohio, would not reflect and respect [their] 20-year relationship and legal marriage.


It is impossible to read the briefs and come away with the impression that gay marriage bans are harmless. They impinge on the lives of perhaps millions of Americans and their children in the 13 states where they are still in place. But do these harms offend the constitution? This is the tougher claim.


In order to show that the 14th amendment requires the states to issue marriage licenses to two people of the same sex, the plaintiffs must persuade the justices that failing to do so violates either the “due process clause”, which says that states may not unjustly deprive citizens of “liberty”, or the “equal protection clause”, which guarantees that everybody receive equal treatment under the law.


There are strong precedents for viewing marriage as a protected right. The Kentucky brief milks Loving v Virginia, a 1967 ruling against anti-miscegenation laws, which held that “the freedom to marry has long been recognised as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” The briefs also point to Zablocki v Redhail, a 1978 case in which the justices struck down a law declaring that people who had fallen behind on their child support were ineligible to marry. And all of the petitioners’ briefs rely heavily on Windsor v United States, the case from 2013 in which the justices nullified the section of the federal Defence of Marriage Act defining marriage along exclusively heterosexual lines. Framing the case as “about ‘marriage’, not ‘same-sex marriage’”, the Michigan brief tries to assert that no new “special” right need be written into the constitution. All the justices must do, the argument goes, is to include a class of people who have been shut out—first implicitly, and then, with state bans in the 1990s and ballot initiatives in the early 2000s, explicitly—from one of life’s great opportunities.


This argument urges the justices to construe the history of marriage rights quite broadly. Conservative justices, such as Antonin Scalia, are unlikely to do that. Indeed, they will probably argue that there is no right to same-sex marriage that is deeply rooted in America’s history, so the constitution does not protect it. But the Kentucky brief does a brilliant job of explaining why such a narrow take is wrongheaded. It is the same mistake the court made in Bowers v Hardwick, a case from 1986 that found no fundamental right to “homosexual sodomy” in the constitution, when the actual right at stake—as the court later clarified in its Lawrence v Texas decision of 2003—was one of personal intimacy. To re-read John Roberts’ testimony in his Senate confirmation hearing in 2005, as Judith Schaeffer did last week, the chief justice may be open to such a claim. As I suggested recently, it is not out of the question that Mr Roberts could join the court’s four liberals and perhaps the perennial swing vote, Justice Anthony Kennedy, in striking down the state bans.


In order to prevail on the equal-protection question, the plaintiffs aim to show that gays and lesbians are a “suspect class”—a group that has suffered from discriminatory treatment and therefore deserves special judicial solicitude when they are targeted by a law. But none of the briefs hinge their claim on proving that homosexuals deserve any particular level of scrutiny. The lawyers claim, instead, that nothing justifies the states’ bans on same-sex marriage. So the bans should fall based even on a “rational basis” analysis, the weakest standard of review. The “desire to forestall social change,” the Kentucky brief says, is “not a legitimate state interest.”


The petitioners’ briefs do a creditable job of exposing the apparent illogic behind the states’ bans on same-sex marriage. Next week, we will examine the states’ arguments in detail to see what reasoning they muster for keeping gays and lesbians out of their marriage club.

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