Conservatives who oppose marriage equality are already predicting chaos if the Supreme Court rules in the next two weeks that same-sex couples can marry. There will undoubtedly be a flurry of legislative hijinks, as some state legislatures struggle to find new ways to discourage LGBT couples from marrying. Alabama Chief Justice Roy Moore may go full George Wallace and stand on the steps of a courthouse somewhere, daring the Alabama National Guard to scoot him over so that a gay couple might obtain a marriage license. This kind of unrest can certainly create tension, and some may wonder if the court might be discouraged from ruling in favor of marriage equality as a result.
But the social cost-benefit analysis of a pro-marriage ruling can’t stop there. Let’s look at the other side of the coin: What about the chaos that might ensue if the court rules against equality? A ruling against equality would be hugely destabilizing for many reasons. Foremost among them, of course, is that such a ruling would send a message that gays and lesbians are not equal under the Constitution and that same-sex couples in broad swaths of the country could not avail themselves of the benefits of marriage. But this result would be pretty obvious.
Much less obvious is the uncertainty that such a ruling would create for many same-sex couples who have already married as a result of federal court decisions.
To understand how enormous this mess would potentially be, we have to unpack where we are now. To date, 37 states plus the District of Columbia have marriage equality. How these states reached that position usually makes little practical difference. But if the Supreme Court rules against marriage equality, suddenly this distinction will become hugely consequential.
Here’s why: This case will be an interpretation of the federal constitution. The federal constitution provides a minimum level of rights, not a maximum. States can offer more expansive rights to their citizens, either through legislative enactments or through state court interpretations of their own constitutions. So if an LGBT couple has married as a result of a state’s own law, no U.S. Supreme Court ruling can take that away. But if a couple has married solely because a federal court thought that the federal constitution required it … that’s another matter.
So where are we? Well, the District of Columbia and 16 of those 37 marriage equality states have equality thanks to legislative developments, ballot initiatives, or rulings from their state courts. In those states, a ruling against marriage equality from the Supreme Court would have no bearing. In these states, same-sex couples could continue to marry, and same-sex couples who already married would remain so. Those states would offer more rights to their citizens than the federal constitution requires, and the upcoming decision wouldn’t change that.
It’s the other 21 states that are murkier. Those states have marriage equality based on a decision from a federal court interpreting the federal constitution that, through one mechanism or another, the state has followed. If the Supreme Court rules that the federal constitution does not require marriage equality, the lower federal court decisions that said otherwise would now be incorrect. Thus, the entire basis for marriage equality would be ripped out from under these states.
Take Pennsylvania as an example. On May 20, 2014, a federal district court judge ruled that the state’s prohibition against same-sex marriage was unconstitutional because it violated the federal constitution. The state quickly began issuing marriage licenses for same-sex couples and announced that it would not appeal the decision, giving it full effect throughout the state. If the Supreme Court rules that the federal constitution is actually not violated by a prohibition against same-sex couples marrying, that May 20, 2014, decision—the entire basis for marriage equality in Pennsylvania—would be, simply, wrong.
Two questions would thus emerge for Pennsylvania and the other 20 states like it. First, would these states continue to issue marriage licenses for same-sex couples into the future, despite no longer being obliged to do so? Second, would the marriages of same-sex couples who married while the federal decision was in effect be threatened?
The first question would likely depend on the state. The more conservative states that are bound by federal court decisions, such as Idaho and Utah, would no doubt petition the federal court to re-open the case because of the new Supreme Court decision, and they would likely be successful in doing so. The more liberal states in this position, such as California and Oregon, would probably choose not to re-open those old cases themselves and continue to issue marriage licenses. But individuals who oppose same-sex marriage in those states might try to re-open those cases, which they may or may not be successful in doing, depending on various legal technicalities. Those states might also choose to push through legislation allowing same-sex marriage, in order to keep things orderly.
The second question, though, is where the real danger of mayhem lies. Most notions of justice would not countenance going back in time and declaring that a couple who were lawfully married at the time are now no longer married. However, that won’t prevent people from trying in all sorts of awful and crazy ways. Let’s think about how that might work.
Let’s say, for example, that a lesbian couple in one of these states married in 2014, following the legalization of same-sex marriage there. They then did three things in 2014-15 that married couples routinely do. First, they filed their taxes. Next, one of the women gave birth to a baby using sperm from an anonymous donor. And third, like a lot of people, they broke up. When they filed their state and federal taxes, they did so as “married, filing jointly.” When they had a baby, their state was nice enough to put both of their names on the child’s birth certificate, because that’s what the state routinely does when a married couple has a baby. And when they broke up, they were really mad at each other. (And tired, because of the baby.)
Not exactly revolutionary stuff. Pretty boring, actually.
But now let’s say that the Supreme Court rules that the basis for their marriage never existed. And let’s say that their state, happy to be free of the requirement to recognize same-sex marriage, issues a statement that, from now on, all same-sex couples will be treated as unmarried for legal purposes.
What happens to this couple? The questions quickly become dizzying. Do they have to go back and amend their taxes? Will they get competent advice on how to do that? Can these people actually access divorce court to obtain an orderly distribution of their assets, or will they be cast adrift by the courts? Can they marry again, or will some states (the ones that recognize same-sex marriage) consider that bigamy? And most disturbingly, what happens to their child? What if the woman who gave birth to the baby tries to assert that the other woman is not a parent, because the sole basis for her parentage was the marriage that shouldn’t ever have been? Will this child end up with only one legal parent?
Or what if they stay together? Will they face difficulty filing their taxes in April 2016 because the state won’t consider them married anymore? Will the federal government, which has a more favorable stance on same-sex marriage right now, thanks to President Barack Obama, allow them to file as married for federal tax purposes even if the state doesn’t? Will a local hospital deny them the right to visit one another because an administrator there thinks they aren’t really married? Will a local school district not allow the non-birth mother to make decisions for the child because the district doesn’t consider the couple married?
And what if one of them dies? What happens when the local tax officials believe their joint assets should be treated as if they were never married? Or when the parent of the deceased challenges property distribution because the parent opposed the marriage in the first place and now has a Supreme Court ruling saying that the basis for the marriage was incorrect? The questions go on and on.
Now, take these scenarios and multiply them by tens of thousands. That’s what we’re looking at.
We are both of the view that the arguments opponents have advanced against marriage equality have almost all been completely nonsensical and that the court will rule for equality. But if the court in fact needs that extra nudge toward equality that a consequentialist argument can provide, what we’ve described here should push it over the edge.
The court ought to consider the moral weight of this chaos even more carefully than it usually does, because the court itself would be responsible if this legal train wreck ever became a reality. That’s because the court had the opportunity on numerous occasions to put these lower court decisions on hold while it considered whether to take up the issue of marriage equality. It chose not to, and it now bears the responsibility for its inactions.
We are too far down the path of equality to go back and wreak havoc on real people’s lives. Although we are not so optimistic that we think every justice on the Supreme Court will appreciate this risk of chaos, at least five should see this possibility as a much-deserved nail in the coffin of the anti-marriage-equality position.