Assuming that the Supreme Court moved forward to a decision on the constitutional controversy, it probably must choose between two contrasting interpretations of what right is at stake. It would be harder for gays and lesbians to win — though not entirely beyond their reach — if one of those versions were accepted by the Justices.
Gay and lesbian couples insist that they are not asking the Court to declare, for the first time ever, that gays and lesbians have a right to marry — that is, a new and very specific right to marry the person of one’s choice, when that person is of the same sex.
Rather, they contend that there is an existing right to marry, well established in every state, and they simply want equal access to it. It is their exclusion from a right now open to opposite-sex couples that they argue denies them legal equality and due process under the Fourteenth Amendment.
There are two variations of that claim.
One is that the Fourteenth Amendment forbids denial of equal legal rights based upon a constitutionally forbidden category. In this situation, that category is sexual orientation or, as it is sometimes called, gender identity.
The other is that the Supreme Court has declared that marriage is a fundamental right under the Constitution, and that the right may not arbitrarily be denied to a couple that — except for their same-sex characteristic — would be eligible to enter it.
And the argument against same-sex marriage:
Many lawyers for states, in defense of their bans, have made a contrasting argument. They contend that gays and lesbians are, in fact, asking the Court to create a brand-new constitutional right to marry a person of the same sex.
The Court, of course, very seldom establishes a previously non-existent constitutional right. It can extend an existing right to new groups — for example, give women legal equality — but it does so by finding that the underlying constitutional concept has simply evolved. The recognition of a new right is simply an interpretative alteration, not a new creation, done from scratch.
Even less often, lawyers for the states have contended, does the Supreme Court recognize a new “fundamental right.” To exist at that most important level, there must be a history behind the right, something that is so evidently a part of constitutional understanding that it is only natural to formally acknowledge it.
In the same-sex marriage cases, then, gay and lesbian couples would confront a major obstacle to winning their case if they had to persuade the Court to create a new right of gay marriage, as such, and, especially, if they had to make the case that such a right is fundamental in the constitutional sense.
So the outcome is actually fairly simple if the plaintiffs are victorious:
If the couples win on the first point, then equality would be mandated nationwide, and recognition would seem to lose its separate significance. It is possible that the Court, if it were to examine the recognition issue wholly apart from its obvious link to marriage access, might find it fairly easy to assure equality in recognition. That, in effect, is what it required the federal government to do when, in the Windsor decision, it opened federal marital benefits to already married same-sex couples as a matter of constitutional equality.
Much of the written briefing in the four cases seems to proceed on the assumption that the two rights being claimed are not distinct, but closely intetwined. It is difficult, indeed, to imagine how the Court might rule in favor of one but not the other.
So the bottom line is that the pro side believes the federal right to marry already exists and is being expanded by the Fourteenth Amendment. The con side believes the right does not exist, because it is a state issue, and that a federal mandate cannot be created wholesale by the courts (and therefore must fall to the states).
Again, as Denniston says, it seems very difficult to say there's no federal mandate to recognize same-sex marriage nationally without, well, recognizing same-sex marriage nationally. The clues are there that indicate that there are at least five justices willing to say there is (and possibly six, if you think the Chief Justice wants his fingerprints on this legacy.)
We'll have more data to pore over tomorrow.
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