Gay marriage will win and equal protection will be the reason

|The Volokh Conspiracy |

Before today's oral argument in Obergefell v. Hodges, it seemed very likely that the Supreme Court would legalize same-sex marriage nationwide. If same-sex marriage advocates were looking for additional reassurance of that outcome today, it was hard to find. In all the talk of Plato, polygamy, and political process, there was plenty of reason for concern. Still, there were key moments in the argument that previewed the likely outcome: a ruling for same-sex marriage on equal protection grounds, not on fundamental right grounds. (The transcript is here.)

To the extent there's any remaining doubt about the outcome, it rests on the vote of Justice Kennedy. An early and potentially misleading key to Kennedy's thinking came in the context of what we might call the Burkean concern about gay marriage, a concern raised in Judge Jeffrey Sutton's opinion for the Sixth Circuit upholding marriage bans. It's too soon, Judge Sutton argued, to know whether same-sex marriage is a good reform or not. So let's be cautious and not nationalize it. Here's the way Kennedy expressed it early on:

[T]he word that keeps coming back to me in this case is "millennia"—plus "time." First of all, there has not been really time, so the Respondents say, for the Federal system to engage in this debate, the separate States. But on a larger scale, it's been, ­­ it was about the same time between Brown and Loving as between Lawrence and this case. It's about 10 years. And so there's time for the scholars and the commentators and the bar and the public to ­­engage in it. But still, 10 years is, I don't even know how to count the decimals when we talk about millennia. This definition has been with us for millennia. And it's very difficult for the Court to say, "Oh well, we know better."

It wasn't the first time Justice Kennedy noted the longstanding meaning of marriage. In oral argument during Perry (the Prop 8 case from 2013), he expressed a similar sentiment: "I think there's-­-there's substantial-that there's substance to the point that sociological information is new. We have five years of information to weigh against 2,000 years of history or more."

Mary Bonauto had about as effective a response as one could probably give to this general concern, which is to say that our society's study and experience with homosexuality go back at least a century. We've learned a lot in that time about gay people, about gay relationships, about gay families, and about state and social discrimination and stigma imposed on them. The first claim for gay marriage was made in the Supreme Court 43 years ago. If one thing has consistently been true in that experience, it's that doomsday predictions about treating gay people equally have been falsified over and over again.

At first, I took Justice Kennedy's observations to reflect a general methodological Burkeanism that should hang over all of constitutional law. That's the way Judge Sutton used it. If that's how Kennedy is using it-if he really means that we should wait-and-see for some indeterminate percentage of millennia before enforcing a principle as constitutional law against vestigial democratic resistance-then it's time for the gay-marriage movement to put the corks back in the champagne bottles and fire up for a generation or more of legislative slogging through the likes of Alabama.

But Kennedy doesn't deploy the Burkean idea as a sledgehammer like that. Instead, in talking about the historical understanding of marriage Kennedy was concerned about the Court defining the tradition broadly for due process purposes. In his exchange with the Solicitor General, Don Verrilli, Kennedy referred directly to that understanding of the historical point:

I'm interested in your comments on [Washington v.] Glucksberg, which says we should have to define a fundamental right in the narrowest terms. A lot of the questions that we're ­­asking your colleague in the earlier part of the argument were-had ­­that in mind, I think. What do we do with the language of Glucksberg that says we have to define it in a narrow way?

Glucksberg was a decision in which the Court rejected a claimed fundamental right to physician-assisted suicide. It was a due process case. On this view of due process, a declaration that the fundamental right to marry allows one to choose a spouse of the same sex is a departure from using the "narrowest terms" based on historical experience. Verrillii responded by saying that, unlike the petitioners themselves, the federal government was making only an equal protection argument and not a due process argument.

So it's apparent that Justice Kennedy was very skeptical of a fundamental right argument for gay marriage. (Note that Justice Kennedy himself has not always stuck to the narrowest terms in due process cases. See Lawrence v. Texas.) Burkeanism is much more at home within the Court's due process doctrine, which preserves historic rights, than it is in equal protection doctrine, which repudiates longstanding traditions of discrimination.

And that leaves the whole range of equal protection claims in Obergefell-heightened scrutiny for sexual orientation discrimination, animus, sex discrimination, or irrational exclusion-that rest on unjustifiable harm to the families and dignity of gay people. Where does Kennedy stand on the equal protection claims in Obergefell?

We got the most direct answer to that question only when the Michigan attorney defending marriage bans, John Bursch, rose to speak. When Bursch tried to explain that a "reasonable voter" could support a ban on same-sex marriage because otherwise heterosexual couples might think their marriage was only about fulfilling adult emotions and not raising their children, Kennedy interrupted:

But that ­­assumes that same-­sex couples could not have the more noble purpose [of devoting themselves to their children], and that's the whole point. Same­-sex couples say, of course, "we understand the nobility and the sacredness of the marriage. We know we can't procreate, but we want the other attributes of it in order to show that we, too, have a dignity that can be fulfilled."

Then there was this, in response to Bursch's argument that the recognition of marriage by the state does not bestow personal dignity:

I don't understand this "not dignity bestowing." I thought that was the whole purpose of marriage. It bestows dignity on both man and woman in a traditional marriage. . . . It's dignity bestowing and these parties say they want to have that-that same ennoblement.

Bursch reiterated that states do not recognize marriage as a way to bestow dignity, which drew a sharp response from Kennedy: "Well, I think many States would be surprised, with reference to traditional marriages, they are not enhancing the dignity of both the parties. I'm puzzled by that."

Even a casual reader of Justice Kennedy's opinions will know that when he perceives that a law infringes personal dignity, the jig is up. Kennedy has discovered what's really going on in a law's purpose or effect. For him, finding an affront to human dignity in legislation might support a due process claim (Lawrence) or, when directed at a discrete class of people, an equal protection claim (Windsor).

Obergefell is closer to Windsor than to Lawrence, which makes it more of an equal protection case. Kennedy has twice now (in Perry and Obergefell) doubted the fundamental right claim because of the historical meaning of marriage. And Kennedy's concern about the dignity of same-sex couples and their children, along with the harm he has acknowledged that marriage bans impose on them, also suggest that he will decide the case mostly on equal protection grounds. Which route(s) the Court might follow within equal protection is very much an open question, but in my view the outcome is not.