Obergefell and the Future of Plural Marriage

In an opinion piece for the New York Times, Professor William Baude suggested that, following the Supreme Court’s decision in Obergefell v. Hodges striking down prohibitions on same-sex marriage, the door may well be open to the argument that bans on plural marriage should fall as well. Baude takes as his cue the suggestion in the dissent of Chief Justice John Roberts that “[o]ne immediate question invited by the [Obergefell] majority’s position is whether States may retain the definition of marriage as a union of two people.”

The answer is, of course, “yes.” Explaining why, though, may take some doing. As my colleague, Jordan Singer, has noted, the decision in Obergefell was, at a minimum, “befuddling.” One reason is because its author, Justice Anthony Kennedy, eschewed a traditional equal protection analysis for the kind of soaring rhetoric that has become a hallmark of his opinions in the area of individual rights. Though the respect he accords the subject matter is notable, at the end of the day, lower courts, state government officials and lawyers need a good deal more to be able to understand the limits of our constitutional commitment to equality.

Had Kennedy embraced a traditional equal protection analysis—as did the Massachusetts Supreme Judicial Court in Goodridge v. Department of Public Health, the first decision to overturn a same-sex marriage ban—the force of the Chief Justice’s predictions about plural marriage likely would have been blunted. To understand why, we must remember that, despite the fact that it is fundamental, unlike nearly all other individual constitutional rights—both explicit and implicit—the right to marry does not exist unless the state provides for it. In other words, the Constitution does not compel states to offer their citizens the opportunity to enter into the legal relationship known as marriage. But if a state chooses to offer its citizens that opportunity, it cannot discriminate against parties who seek to enter into marriage absent some legitimate basis for doing so.

As numerous federal and state courts have concluded, there is no legitimate basis for excluding same-sex couples from marriage. Though as a historical matter such couples were not eligible for marriage, that is not a valid argument for continuing to prohibit them from marrying when they otherwise satisfy the structural requirements for eligibility. Those requirements contemplate two parties who have consented to be married in the eyes of the law, so that they may both enjoy the particular benefits that this binary legal relationship provides and undertake the particular responsibilities it assigns. Nothing about the inherent nature of those benefits and responsibilities disables same-sex couples from entering into marriage.

The point here is that every state has limited marriage to a union of two—and only two—parties. That binary relationship forms the structural core of the institution of marriage. For a court to hold same-sex couples equally eligible to enter into that relationship no more changed the definition of marriage than would an order foreclosing a state from declining to provide a particular opportunity to otherwise qualified members of the opposite sex. See United States v. Virginia. On the other hand, for a court to order that a state must extend the opportunity to enter into marriage to any combination of parties who desire it would take that court well beyond the judicial role contemplated by current equal protection doctrine.

To illustrate, consider this hypothetical situation: suppose in response to Obergefell the state of Pennsyltucky decided to get out of the marriage business altogether—in other words, suppose the state decided not to offer its citizens the opportunity to enter into any form of civil marriage. Could a court order the state to create that legal relationship, with all of the public and administrative costs associated with managing it? No more than a court could order a state to provide funds to allow aspiring but impoverished political candidates to run for office. It’s equally unlikely a court would order a state that currently offers its citizens the opportunity to enter into binary marriage—which is to say, every state under current law—to admit any number of parties to that relationship. Unlike the relief requested by the plaintiffs in Obergefell, such an order would in fact change the structural definition of marriage.

At bottom, multiple-party relationships simply aren’t the same as two-party relationships. The binary relationship—and not the genders of the parties to it—lies at the heart of marriage as the states have defined it today. Plural marriage may come, but it will be the result of legislative rather than judicial action.

Lawrence Friedman

Recent Supreme Court Term: Obergefell v. Hodges: Equality and Constitutional Interpretation

On June 26 the U.S. Supreme Court decided the “same-sex marriage” case Obergefell v. Hodges. The Court held unconstitutional, by a 5-4 vote, state laws that limit marriage to heterosexual couples. According to the Court, these limits violate both the Due Process and Equal Protection clauses of the 14th Amendment.

Justice Kennedy’s opinion for the Court focuses on the crucial role that marriage, as a component of the liberty protected by the Due Process clause, plays both in individuals’ lives and in structuring society.  Denying same sex-couples the opportunity to marry not only affects what type of society we live in, but also impoverishes the lives of a particular group of people in society. According to the Court, individuals define themselves through marriage. In addition, through marriage they access other “freedoms, such as expression, intimacy, and spirituality.” (p. 13) Marriage is also a means for individuals to achieve the “highest ideals of love, fidelity, devotion, sacrifice, and family.” (p. 28) Furthermore, children in same-sex families are injured by having to endure the stigma of familial inferiority as a result of the non-recognition of their parents’ marriages. (p. 15)

Each of the four dissents objects to the majority’s conclusion that there is a violation of the Due Process clause. The dissenting justices argue that Justice Kennedy’s reasons for finding that same-sex couples have a protected fundamental right to marry are matters of policy and that the state legislatures, not the U.S. Supreme Court, should decide what policies are best for the people and society overall. The Chief Justice’s dissent, for example, does not deny that there is a fundamental right to marry; instead the Chief Justice argues that this fundamental right applies only to heterosexual couples because “the core definition of marriage … [is]the union of a man and a woman.” (pp. 8 and 16.) This “core” meaning of the fundamental right of marriage is “deeply rooted in this Nation’s history and tradition.” Constraints on the definition of constitutionally protected rights keep the courts from legislating.

The majority and the dissents all recognize that the terms “liberty” and “marriage” must be interpreted. Unconstrained interpretation is problematic because it is difficult to distinguish from the act of legislating. Nonetheless, courts must interpret the words of a text, including a constitution. To be legitimate within our system, judicial interpretations must be bounded by an accepted and acceptable structure. The Court and the dissents disagree on what this structure is.

The Chief Justice’s dissent searches for a “core” meaning of marriage as a means of avoiding excessive interpretation. However, as the Court notes, the institution of marriage has changed dramatically over time. Different “core” meanings can be identified at different moments in time, space, and society. As Justice Kennedy wrote in his opinion for the Court, the doctrine of coverture was critical to the meaning of marriage in the early 19th century. At the time, a married woman’s husband could have determined where she would live, whether she could enter any particular contract, and how to employ any assets she may have owned upon marriage. He could also decide whether to force sexual relations on her and under what circumstances to discipline her physically or otherwise. In short, the central feature of her marriage might have been her subordination to her husband, not the fact that he was sexually male. The Chief Justice’s definition of marriage as based on heterosexuality is a choice among many central definitions of marriage.

The Court’s definition of marriage relies on a different set of concepts to constrain its interpretation: individual autonomy, intimacy and expression; the fundamental role that marriage plays in promoting child development and in structuring society; and the importance of equality as also articulated in the 14th Amendment.

For many decades, equality has had a critical function in identifying the proper role for courts in interpreting the constitutionality of majoritarian legislation. In our democratic system the courts protect minorities from oppression by the majority. (p. 24) See United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938) As the Court’s opinion notes, the ideas behind the Equal Protection clause reinforce the liberties protected by Due Process; restricting marriage to heterosexuals would have the effect of “diminish[ing] the personhood” of members of same-sex couples. (p. 19) Similarly, in U.S. v. Windsor, the Court highlighted the humiliation and financial harm to children in same-sex families when their parents’ marriages are not recognized by the federal government. This role of protecting minorities against harm done by the majority has been central to the role of the Court.

Since they cannot avoid interpretation, courts must identify the principles to guide their interpretations. In Obergefell, the Court chose protection of the members of a minority group against the demeaning life the legislative majority would have allowed them, a life determined by 19th century understandings of marriage.

The process of identifying the parameters for constitutional interpretation is one of the most important functions of courts and lawyers. The fact that it is subject to vigorous debate and is likely to continue to be so is healthy for our democracy.

Judith G. Greenberg