There are several different cases on same-sex marriage that the Supreme Court might choose to review. Which one will it take?
Nine years ago in the case of Lawrence v. Texas the Supreme Court ruled that the government may not make it a crime to have sex with someone of the same gender. Now the Court will have to decide whether to take that a step further. May the government deny gay and lesbian couples the right to marry?
There are five categories of same-sex marriage cases, each presenting a different constitutional issue.
First, there is the fact that some states grant marriage licenses to same-sex couples, but under the Defense of Marriage Act the federal government does not recognize these marriages as valid. These cases present an issue of federalism: does the federal government have the power to refuse to recognize marriages that the states have chosen to recognize? In these cases same-sex couples will argue that domestic relations law is primarily committed to the states and has been traditionally determined by the states. This is essentially a question of "states' rights" arising under the Tenth Amendment, and the First Circuit Court of Appeals ruled that the federal government did not have the power to undermine state law in this respect.
Second, there is the fact that many states have adopted constitutional amendments preventing their state legislative assemblies and other governmental units from adopting laws and policies recognizing same-sex marriages. The constitutional attack on these laws will be on First Amendment grounds. Same-sex couples will argue that these types of laws distort the political process and interfere with the political rights of same-sex couples to win legal protections that are available to other people. They will assert that these types of laws interfere with their rights as citizens to participate equally in the democratic process. I am not aware of any pending cases that have litigated this issue.
Third, most states refuse to recognize the validity of same-sex marriages created in other states. This raises a problem under the Full Faith and Credit Clause of the Constitution. The federal Defense of Marriage Act contains a provision permitting the states to refuse to recognize same-sex marriages from other states, but the question also will arise whether Congress has the power to enforce the Full Faith and Credit Act in this way. Congress may prescribe procedures for recognizing the acts and judgments of other states; may it also intervene substantively in the process to deny some states respect for marriages that they have performed? Like the first category of cases, this type of case is also concerned primarily with questions of federalism.
Fourth, some states grant same-sex couples all of the same rights as married couples, but have chosen to call the union by a different name: "domestic partnership" or "civil union" instead of "marriage." The constitutional question in such as case is whether the state can articulate a legitimate reason for this exercise in semantics. Same-sex couples challenging these types of laws contend that the only possible reason for the difference in wording is to make gay and lesbian couples feel like second-class citizens, and that the government is not permitted to do that. The decision by the Ninth Circuit in the Prop 8 case was that there is no justification for calling the legal relation by another name.
Fifth, same-sex couples simply argue that they have the right, under Due Process Clause and Equal Protection Clause of the Fourteenth Amendment, to equal marriage rights - that it violates the Constitution for the state or federal government to deny them equal access to the institution of marriage and all the attendant legal benefits. If the Supreme Court decides to tackle this issue, it need not decide any of the previous questions.
We shall see whether the Court adopts an incremental approach to resolving the constitutional questions raised by same-sex marriage, or whether it will seek to decide the matter all at once.
Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.