AGs Split Ahead of Gay Marriage Arguments


When the Supreme Court hears arguments this week on same-sex marriage, it will confront an issue that has divided the public across the country and exposed fissures among the states. (See map.)

One divided group could weigh heavily on the justices as they consider what could be a historic, once-in-a-generation constitutional decision: the briefs of states’ attorneys general.

More than half the states’ top lawyers have weighed in on the same-sex marriage issue before the court, underscoring the degree to which state officials and those they represent see their interests at work in the case. Depending how the justices rule, their decision could upend established laws in nearly every state.

As lawsuits over same-sex marriage have wound through the courts, the tangled web of state laws dealing with domestic partnerships, civil unions and same-sex marriage has become mired in the broader debate.

States’ rights and federalism could factor strongly in any decision the justices hand down as they consider two key questions: First, whether California’s Proposition 8 banning same-sex marriage is constitutional. And second, whether the federal Defense of Marriage Act barring the federal government from recognizing legal same-sex unions is either unconstitutionally discriminatory or an infringement on states’ right to define marriage as they see fit.

In the first question on California’s ban, 20 states have argued the law should stand, while 13 plus the District of Columbia and the state of California argue it should not.

On the Defense of Marriage Act, or DOMA, as it is known, 17 states filed a brief supporting the law. Fifteen, plus the District of Columbia, filed a brief arguing against it.

“This is one of those rare cases that has the potential to be the Brown v. Board of Education for our times,” said Erwin Chemerinsky, founding dean of the University of California, Irvine law school. “It’s not surprising that so many attorneys general are participating.”

“The Defense of Marriage Act represents an unprecedented intrusion into an area of law that has always been controlled by the states.”
-Massachusetts Attorney General Martha Coakley (D)

In many ways, the debate over same-sex marriage has always focused heavily on the states. In 1995, Utah enacted the nation’s first state Defense of Marriage Act. A year later, then President Bill Clinton signed a federal version of the law.

From that point on, the issue moved quickly. In 2000, Vermont moved to allow civil unions, and four years later, the Massachusetts Supreme Court allowed same-sex marriages, the first state to do so. But by the end of 2004, 20 more states had banned same-sex marriage.

This is the scorecard today: 34 states do not allow same-sex unions, while nine plus the District of Columbia do. Six allow civil unions. Four offer neither marriage nor civil unions but do allow domestic partnerships.

Public opinion remains split as well. A recent Washington Post poll found historical levels of support among the public as a whole for gay marriage. But a recent Pew Research Center survey found a gaping generational divide: 70 percent of “millennial” – 18- to 32-year-olds – support gay marriage while just a third of those over age 50 do so.

Legal tensions in Washington and among the states will be on display at the Supreme Court this week.

On Tuesday, the court will consider California’s Proposition 8. On this question the justices could rule broadly or narrowly: The court could reaffirm a lower court decision striking down the ban, a decision that would legalize same-sex marriages only in California. Or the justices could find Proposition 8 unconstitutional, potentially declaring all similar state bans are as well.

“This legal position does not discriminate against the right of any individual… It is a defense of the legal ability of the people through their elected representatives to make a policy choice.”
-Indiana Attorney General Greg Zoeller (R)

The right to determine marriage law – a function historically reserved for the states – underpins the arguments in favor of California’s ban. Proposition 8 was enacted by popular vote, and its supporters say both the state’s ability to limit marriage and the rights of voters to determine that law shouldn’t be infringed upon by the Supreme Court.

The states supporting the ban strike a similar tone. “This legal position does not discriminate,” Indiana Attorney General Greg Zoeller, a Republican, said when announcing the state’s involvement in the case. “It is a defense of the legal ability of the people through their elected representatives to make a policy choice.”

Proposition 8’s detractors, meanwhile, have a simple response: States’ rights don’t include the right to discriminate against gay couples.

Similarly in the DOMA issue, which the court will consider Wednesday, the interests of states are at the heart of the matter. But in this case, it’s state’s that oppose same-sex marriage that support the supremacy a federal law that refuses to recognize unions where they are allowed.

On the other hand, states supporting same-sex marriage say states should have the right to determine who can or cannot be married. They argue it’s unconstitutional for the federal government to refuse to recognize unions legally performed under state law.

“The Defense of Marriage Act represents an unprecedented intrusion into an area of law that has always been controlled by the states,” Massachusetts Attorney General Martha Coakley, a Democrat, said when announcing that state’s involvement. “This discriminatory and unconstitutional law harms thousands of families in Massachusetts and takes away our state’s right to extend marriage equality to all couples.”

The states opposing same-sex marriage, though, see the far-reaching federal law as an extra bulwark against having to recognize same-sex unions performed elsewhere. Many state laws banning such unions also block the state from recognizing those performed in those that do. Without the federal law, they say, their state laws could be undermined by other states’ marriages if the federal government were to recognize them.

“Our nation is currently engaging in a robust debate on same-sex marriage,” argues Michigan’s brief filed in the case. “This debate should be allowed to play out in our democratic institutions and should not be short-circuited by the courts.”

Former Solicitor General Paul Clement, who’s representing congressional Republicans defending DOMA, echoed that.

“One of the great benefits of federalism is that it allows states to adopt ‘novel social and economic experiments without risk to the rest of the country,’” Clement’s brief argues. “It certainly was rational for Congress to decide to allow states to act as laboratories of democracy, while the federal government awaited the results of such state experiments.”

For some, though, the states’ case against same-sex marriage smacks of hypocrisy or “opportunistic federalism,” as Steven Schwinn, a law professor at the John Marshall Law School in Chicago put it.

“It’s shocking to me,” he said, “that people who on the political right have been screaming for so long about states’ rights are now lining up behind DOMA.”

But at its most basic level, the states’ argument in favor of DOMA and against same-sex marriage ultimately boils down to preserving the patchwork marriage law regime that’s existed since the states began their divergent path two decades ago. Indeed, Indiana’s Zoeller has said he sees his argument as equally supportive of states’ right to allow, or forbid, same-sex unions.

The duality is an illustration of the issue’s complexity. In one instance, it is states’ authority to set their own laws that preserves the existing patchwork. But in another, it is the federal government’s refusal to recognize same-sex unions in states that allow them which serves to protect the same status quo.

Ultimately, that confluence of state and federal laws – and the nation’s long history of struggling with states’ rights on a variety of issues – could make the court’s ultimate decision all the more consequential.

As Mae Kuykendall, a law professor at Michigan State University, told Stateline: “It’s not possible to confine social change within the state borders. When the culture changes, it spreads all over the country.”


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