Friday, January 16, 2015

Cert Granted in SSM Cases: Don't Pay Much Attention to the Rewording of the Cert Questions

by Michael Dorf

The Supreme Court cert grant in the SSM cases from the 6th Circuit included two rephrased questions presented: "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?"

An astute observer emailed me asking whether this is not a bit odd. After all, one might think that the answer to both questions is no, so long as the state doesn't license or recognize any marriages, same-sex or opposite-sex.

But in fact, the states all do license and recognize opposite-sex marriages, so the objection is academic. Moreover, under the Court's fundamental rights jurisprudence, states probably cannot simply deny marriage to everyone.

Accordingly, I don't read much significance into the Court's rephrasing of the cert questions. It seems to me that the Court rephrased in such a way as to make clear that in addressing both questions, lawyers are free to (and expected to) address both equal protection and substantive due process issues.