After Tuesday’s oral arguments before the Supreme Court in Obergefell v. Hodges, those who were confidently predicting victory for marriage equality are—if we’re being honest—trembling a bit. Based on the questions the justices asked, the outcome appears to be very much in doubt. And if the court were to decide that states aren’t constitutionally required to issue marriage licenses to same-sex couples, the result will be chaos. Marriages in many states could be legally unraveled, leading to consequences that would be sure to tie up couples and courts for years to come.
Before Tuesday, some observers had speculated that Chief Justice Roberts’ vote might be up for grabs, but his questioning left only a little of that hope alive. It seems Jeffrey Rosen was right in arguing, as he did a couple of weeks ago, that Roberts would remain committed to allowing the democratic process to play out in the states.
As usual, then, it is Justice Kennedy’s vote that matters—and even that vote, one previously perceived as likely, now appears uncertain. His questions in a case challenging California’s Proposition 8 a few years ago suggested a tension in his thinking. On the one hand, he was concerned about gay and lesbian couples and their children, expressing the view that denying them the right to marry would both demean them and “humiliate” their children. On the other hand, he worried that allowing such unions would be akin to jumping off a cliff, given the unknown consequences of doing so.
Exactly those worries surfaced on Tuesday. When questioning Mary Bonauto, who was representing the couples, Kennedy had this to say on the issue of unintended results: “One of the problems is when you think about these cases you think about words or cases, and—the word that keeps coming back to me … is millennia, plus time.” And then, worse: “I don’t know how to count the decimals when we talk about millennia. This definition has been with us for millennia. And it—it’s very difficult for the court to say, oh, well, we know better.” (He later said something about the Kalahari people, doubtless causing many observers to proceed directly to Wikipedia; but his point was, again, that even “ancient peoples” with a social structure we wouldn’t recognize today defined marriage as the union of a man and a woman.)
To be sure, Kennedy was tough in his questioning of John Bursch, the lawyer representing the states, reiterating his understanding of marriage as an institution that confers “dignity” upon couples. But the “millennia” line of thought should give us pause. Maybe it’s time to sober up, and to consider what might happen if the court were to decide that the states can continue to make their own decisions on the right of same-sex couples to marry. In short, we’d have a mess on our hands.
Why? Because during the past year and change, a host of federal courts have declared that state laws banning same-sex marriages are unconstitutional. In reaching those decisions, the courts relied on broad statements about the dignity and equality of gay and lesbian couples voiced by Justice Kennedy himself in United States v. Windsor, the 2013 decision that struck down the key portion of the federal Defense of Marriage Act. But if that reading was wrong—as will turn out to be the case if the Obergefell case goes for the four Midwestern states defending their bans—then all of those state laws are potentially reanimated. And about two-thirds of the states that now allow same-sex marriages do so only because they’ve been forced to do so by the federal courts.
Let’s take Pennsylvania as an example (it’s just one of many). In 1996, the state—like many others—passed a law prohibiting same-sex marriages. Last year, a federal trial court in that state declared the law unconstitutional; that’s where the matter ended, because the state did not appeal. (Most of the other cases were decided by federal appellate courts, meaning that each decision applied to laws in several states.) But if the U.S. Supreme Court now finds these laws permissible, then Pennsylvania’s law—and a bunch of others—could lurch back to life, zombie-like, and threaten to take down all the marriages performed in reliance on the lower courts’ decisions.
An even worse outcome might be an uneven situation in which some marriages are preserved while further ones are banned. That’s what happened in California, where voters quickly responded to a state supreme court decision finding that gay couples had a constitutional right to marry by enacting Proposition 8, which amended the state constitution and trumped the court’s decision. The California Supreme Court then had to decide whether the marriages that had been solemnized during the short interim remained valid. They did, but the result was a weird, two-tiered system, where some same-sex couples were married, but others could not join them, at least until Prop 8 was struck down in 2013.
If this unruly situation comes to pass, the court will have a good deal to answer for. If the justices—and especially Justice Kennedy—were in doubt about what to do about marriage equality, they should have granted review of one of the earlier cases, rather than letting these decisions—and marriages—stand. If the court decides this case in favor of the states, and if years of chaos then ensue, the court’s standing will be eroded, perhaps for years to come. And it will be their own fault.