With U.S. Supreme Court oral arguments on same sex marriage set for April 28, 2015, Dan Urman, lead faculty for the law curriculum in the Doctor of Law and Policy program, answers a few questions about how this moment has arrived, and what it means. Urman teaches about same-sex marriage litigation in his doctoral courses to illustrate how law reflects larger social and political dynamics.
1. How did this topic emerge and end up in the courts?
Marriage equality is an important and rapidly changing topic, led largely by lawyers and judges. Fifteen years ago, not a single state permitted same-sex marriage, while 37 currently do (26 of the 37 involved a court decision). The U.S. Supreme Court has paved the path. In 2003, in Lawrence v. Texas, the Court invalidated state laws criminalizing homosexual sodomy. The Court ruled that such laws violated individuals’ fundamental right to private intimacy. The opinion claimed that it did not affect state marriage bans, but Justice Scalia’s sharp dissent suggested “State laws against bigamy, same-sex marriage, adult incest, prostitution, adultery, fornication, bestiality, and obscenity……(are) called into question by today’s decision; the Court makes no effort to limit the scope of its decision to exclude them from its holding.” Scalia returned to this argument 10 years later.
Less than a year after Lawrence, in Goodridge v. Department of Public Health, the Massachusetts Supreme Judicial Court ruled that the Massachusetts Constitution required same-sex marriage rights. This historic decision produced an immediate backlash, with 13 states passing constitutional bans on same-sex marriage. However, over the longer term, the Goodridge decision increased public support for same-sex marriage. A friendlier social environment meant more people came out of the closet, and in doing so, changed societal perceptions.
In June 2013, the U.S. Supreme Court decided U.S. v. Windsor, striking down the section of a 1996 federal law (Defense of Marriage Act, or “DOMA”) that defined marriage, for federal purposes, as between a man and a woman. The Court held that DOMA’s federal definition of marriage violated constitutional guarantees of liberty and equality. Justice Scalia returned to a theme from Lawrence: how could the majority logically limit the ruling? Scalia noted: “The real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by “bare…desire to harm” couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.”
In the wake of Windsor, lawyers challenged state marriage bans on same-sex marriage, and most succeeded. At the time of this writing, 29 federal judges have ruled that 18 state bans violate the 14th Amendment (some on due process/fundamental right to marriage grounds; others on equal protection of the law grounds). Ironically, many opinions have referenced Scalia’s language and logic from his Windsor dissent in their opinions. One ruling from Wisconsin noted, “On its face, Windsor does not apply to state law bans on marriage between same-sex couples….However, as Justice Scalia noted in his dissent, it is difficult to limit the Court’s ruling to DOMA only.”
2. What is at stake in the present case in front of the Supreme Court?
Essentially, this case asks if Justice Scalia’s dissent was right: should Windsor’s logic be extended to state bans on same-sex marriage? Should same-sex couples be able to marry anywhere in the U.S., and have their marriages recognized everywhere? In November 2014, the U.S. Court of Appeals for the Sixth Circuit upheld state bans on same-sex marriage (Kentucky, Michigan, Ohio, Tennessee, defined marriage as between a man and a woman). Lawyers representing couples in states with bans appealed, and the Supreme Court agreed to hear the case and resolve conflicts between different states and federal courts. Mary Bonauto, a Northeastern Law School graduate who successfully argued Goodridge in 2003, will argue on behalf of the same-sex couples at the Supreme Court.
3. How do you predict the case will be decided?
I predict that the Court will extend the logic of Windsor to all 50 states, permitting marriage equality across the nation. The tide of history is strong, and the Court will not get in its way. This will not be a unanimous 9-0 opinion. There are at least 5 votes for marriage equality (Justices Breyer, Ginsburg, Kagan, Kennedy, Sotomayor). Justice Anthony Kennedy will probably author the majority opinion. Given their previous votes, I predict that Justices Scalia, Thomas, and Alito will dissent. There is a chance that Chief Justice John Roberts, who dissented in Windsor, will join the majority and write a narrower majority opinion.
4. How have you integrated this topic into your law curriculum?
I have taught same-sex marriage litigation in every aspect of the law curriculum, because it demonstrates how the law can change even when the text of the Constitution does not. It also demonstrates how the law affects and is affected by larger social and political trends. Lawrence v. Texas is the first legal opinion students read when they begin the Doctor of Law and Policy program. To give them proper context for Lawrence, I assign the book Flagrant Conduct by Distinguished Guest Lecturer Dale Carpenter. This book tells the fascinating story behind the initial lawsuit and case. After students read Lawrence and Windsor, I assigned papers where students addressed the constitutionality of remaining state bans on same-sex marriage. In January 2015, the Court asked lawyers to do the same thing. This term, we are exploring the Justices’ various constitutional approaches. Students will write about views of the constitution as “living” or “frozen in time,” and how that relates to debates over marriage equality. Having been immersed in this subject throughout their studies, I know that our students will be following the oral arguments closely and eagerly anticipating the ruling expected in late June.