by Michael Dorf
On Saturday I was on a panel called "One Year Later: U.S. Law and Politics in the Post-DOMA World", as part of the first-ever Cornell University LGBT Alumni Reunion. Even though it was a beautiful spring/summer day outside, we still drew a good-sized crowd for what turned out to be an extremely interesting discussion.
My role was mostly as table setter; although the audience included lawyers, many were not lawyers, and so I set out the background to United States v. Windsor, what the SCOTUS decided, and what questions it left open. At least for me, the other panelists' presentations were more interesting: Diana Adams, Dale Bernstein, Art Leonard, and moderator Jason McGill focused most of their attention on the slew of activity in the courts and elsewhere since Windsor, as well as on the practical problems that still bedevil same-sex couples and other non-traditional families.
At some point in the next week or two, I expect that there will be video of the event available. (It was livestreamed as it happened but that link no longer works.) When there is video, I'll post the link back here in an updated version of the post and also tweet it on the DoL Twitter feed. Meanwhile, I'd like to make two related observations based on the panel.
The first concerns a question I (and many others) have considered before that arose in response to a question from an audience member: What has been the role of litigation in the success (thus far) of the movement for marriage equality? (For earlier posts relevant to the question click here and/or here.) Each in his or her own way, all of us panelists gave a version of the same answer: Litigation has played an important role, although hardly the only role, as one prong of a multi-pronged strategy that included public education, lobbying, and other forms of political activism.
As I said in my comments on this question at the panel, I have come to think that one important impact of the litigation has been exposure of how weak the policy ground is for continuing in place SSM bans. At this point, the chief ground offered in defense of SSM bans is that they are an artificact of the biological differences between same-sex and opposite-sex couples; for the latter but not the former, marriage makes it more likely that children born as a product of accidental procreation are raised in a two-parent home.
I am confident that readers of DoL are smart enough to see for themselves what's wrong with that claim. Among other things, it's factually false: Even if one assumes that opposite-sex marriage as an institution was once envisioned as a vehicle for addressing the problem of accidental procreation, that would only explain why a state may not have gotten around to expanding marriage to cover same-sex couples; it does not explain why a state would affirmatively ban same-sex marriage.
Moreover, here the opponents of same-sex marriage have what we might call a translation problem. The notion that marriage is tied to accidental procreation is typically offered in litigation as a reason for thinking that SSM bans are "rational," and thus constitutional (if mere rational basis scrutiny is required). Most courts have found that the accidental procreation argument fails even that minimally demanding test, but even if a court were to find that the accidental procreation argument is not completely crazy, most Americans understandably find that the argument is unpersuasive. Voters are under no obligation to form their political preferences based on what is merely rational (and could not do so coherently, because often various mutually exclusive policies will each be rational). So one impact of the litigation has been to turn (some) voters in favor of SSM, which then plays a role in persuasding various politicians to leave their SSM bans undefended.
My second post-panel observation concerns the impact of disuniformity. In her presentation, (Cornell Law School Adjunct) Professor Adams gave numerous examples of the injustice and confusion that results from the fact that DOMA Sec. 2--which allows states that do not recognize SSM to deny full faith and credit to SSMs celebrated in states that do recognize SSM--has not been formally invalidated. Some of the post-Windsor SSM decisions in the lower courts obligate such recognition notwithstanding DOMA Sec. 2, but the Supreme Court has not yet ruled on the matter, and until it does (or simply invalidates all states' prohibitions of SSM), the injustice and confusion will continue.
Consider two examples drawn from Prof. Adams's presentation. First, suppose that a New York married same-sex couple and their child are heading south for a family vacation when they get into a car accident in North Carolina. The child is taken to the hospital but one (or both) of the parents is denied visiting provileges in the ICU because North Carolina does not recognize the marriage, nor the parental status of the non-biological parent.
Second, suppose a same-sex couple legally marries in a state that recognizes SSM and later moves to a state that does not recognize SSM, where they grow apart and seek to divorce. The couple may find that the state where they got married will not issue the divorce because they are not residents, while the state where they live will not grant the divorce because it doesn't even recognize the marriage. This can lead to serious practical problems about the division of assets and custody.
The foregoing examples and many other challenges are not merely hypothetical. To my mind, they provide another reason for reading Windsor as fundamentally not a federalism decision. Ordinarily, our system of federalism admits of a varied patchwork of regulation because in many circumstances, territoriality provides for a workable choice-of-law rule: For example, whether and how much you pay in state income tax or state sales tax depends on the state you live in or happen to be passing through. Even then, complicated issues arise at the borders, which is one reason why Congress has the power to preempt state law in the interest of promoting interstate commerce. But still, we tolerate a degree of disuniformity as the price we pay for the benefits of federalism (such as allowing relatively local majorities to decide for themselves how to trade off taxes versus government services).
But one will be hard-pressed to identify any concrete advantages that compensate for interstate disuniformity in the SSM context. That is why SSM opponents are, in this context, reduced to making almost purely abstract appeals to local democracy. There is always something to such appeals. Other things being equal, judges ought not to interfere with democratic decisions, whether taken at the local, state, or national level. But here other things are far from equal, and so the burden will (or at least should) fall on the opponents of SSM to identify some substantial benefit of permitting local majorities to exclude same-sex couples from the benefits of marriage. And so far, the very weak argument about accidental procreation by opposite-sex couples looks like the best that they can do.