This article is one in a multipart series leading up to a future Supreme Court decision on marriage equality. The Court has granted review of four marriage cases from the Sixth Circuit and a decision may be handed down at the end of June. Between now and then, Towleroad will break down the cases step by step. Today's topic: The Questions Presented.
Let's start at the very beginning. When the Supreme Court agreed to hear four marriage equality cases out of the Sixth Circuit, it issued an order that included two legal questions for the parties to answer.
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?
These are called "questions presented," and they frame the discussion in the parties' briefs and at oral argument. Petitions for writs of certioari at the Court have to include questions presented: they are the hooks that tell the justices that there is a live legal question of great importance that they must address. That said, the justices can adopt these questions, alter them, add or subtract from them, or deviate from them in any way.
This has led to quite a bit of chatter about what these particular questions mean for the argument. Adam Liptak of the New York Times suggested that the Court included Question 2 as a way to avoid a broad, nationwide pro-equality holding. It's a neat conjecture, one that is sure to keep the press abuzz. However, there are exactly zero reasons to believe Mr. Liptak is correct. Nothing nefarious or sneaky is going on. The Court is ready to rule on the freedom to marry. This is evident both from the questions presented and the Court's actions over the last several months.
I explain, AFTER THE JUMP…
Framing the debate is an essential first step, and it may even make the difference between winning and losing. We might be familiar with this concept from political reporting. For example, the line "If the election is framed as a referendum on President Obama's policies, [insert Democratic candidate here] will lose" became a common refrain during the 2014 election cycle. This is even more true at the Supreme Court, where all cases require an explicit frame.
We have discussed the impact of framing the question several times before. Our community lost an important case, setting us back decades, when, in Bowers v. Hardwick (1986), the Court framed a challenge to anti-sodomy laws as asking, "Is there a right to homosexual sodomy in the Constitution?" There wasn't, Justice Byron White (pictured, right) said. We won in Lawrence v. Texas (2003) because the Court looked at a similar anti-sodomy statute through a different lens: "Does the Constitution give us the freedom of intimate association free of government intrusion?" It does, said Justice Kennedy. The Bowers frame stacked the deck against equality; the Lawrence frame broadened the issue to cover not just the symptom (sodomy), but the underlying cause (the right to express yourself intimately).
Question 1 above does not make the same Bowers mistake. It is exactly on point and covers the the freedom to marry. Question 2, however, is giving people some agita. It shouldn't.
First, recall that there were four cases on appeal up to the Supreme Court and all four cases were consolidated and granted review. But the four cases were not identical. Two of them — the Ohio case, Obergefell v. Hodges, and the Tennessee case, Tanco v. Haslam — are exclusively challenges to the states' refusal to recognize valid marriages performed out of state. They are challenges to what are colloquially called "mini-DOMAs." The "Big DOMA" was the statute that was overturned in Windsor; it barred the federal government from recognizing valid marriages between same-sex couples performed in the states. "Mini-DOMAs" bar states from recognizing valid same-sex marriages performed in other states.
That these two "mini-DOMA" cases are part of the set of cases granted review explains Question 2. If there were no Question 2, which is the only legal issue raised by the Ohio and Tennessee cases, there would be no role for those states to play in the argument. To consolidate all the cases and issue one omnibus ruling, the Court had to include this question. In this way, inclusion of Question 2 is not a way around a marriage equality ruling; rather, it represents "good housekeeping," as Harvard's Laurence Tribe said, and indicates that the Court wants to resolve all issues at once.
Second, the Court has given all indications that it is ready to rule on the freedom to marry, generally. I discussed all the evidence before and listed other evidence here. Suffice it to say that the Court's refusal to intervene in the Fourth, Seventh, Tenth, and Ninth Circuit cases, thus letting marriage equality come to the states under the jurisdiction of those courts, suggests that more than 5 justices were absolutely fine with having the freedom to marry in 2/3 of the states (you need 4 to grant review, so 6 had to say no). The Court refused to continue the stay in Florida even though the Eleventh Circuit had yet to rule. And Justice Kennedy has shown that he is but a small step away from recognizing the freedom to marry.
I am not arguing that victory at the Supreme Court is a slam dunk. However, we should not be looking for bogeyman around every corner. Everything is awesome.
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Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.
