Obergefell v. Hodges: Oral Argument – April 28, 2015 (Part 2)
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Obergefell v. Hodges: Oral Argument – April 28, 2015 (Part 2)


Roberts: We’ll now hear our argument on the second question presented in this case. Mr. Hallward-Driemeier. Hallward-Driemeier: Mr. Chief Justice, and may it please the Court: The Question 2 Petitioners are already married. They have established those enduring relationships, and they have a liberty interest that is of fundamental importance to these couples and their children. A State should not be allowed to effectively dissolve that marriage without a sufficiently important justification to do so. These Petitioners have built their lives around their marriages, including bringing children into their families, just as opposite-sex couples have done. But the non-recognition laws undermine the stability of these families, though the States purport to support just such stability. Alito: I was somewhat surprised by the arguments you made in your brief because they are largely a repetition of the arguments that we just heard with respect to Question 1. I thought the point of Question 2 was whether there would be a — an obligation to recognize a same-sex marriage entered into in another State where that is lawful even if the State itself, constitutionally, does not recognize same-sex marriage. I thought that’s the question in Question 2. Is — am I wrong? Hallward-Driemeier: It is the question in Question 2, and this Court’s decisions establish that there is not only a right to be married, but a right to remain married; that there is a protected liberty interest in the status of one’s marriage once it has been established under law. Scalia: Even — even if that marriage is — is not lawful under — under the receiving State’s law; right? Hallward-Driemeier: That’s right. There is definitely — Scalia: Is that right? No matter — I mean, suppose — well, let’s say someone gets married in a — in a country that permits polygamy. Does a State have to acknowledge that marriage? Hallward-Driemeier: Well, of course, the State could assert justifications for not doing so, and I think there would be justifications — Scalia: Okay. So — Hallward-Driemeier: — for not recognizing such — Scalia: — what would the justification be? That it’s contrary to the State’s public policy, I assume; right? Hallward-Driemeier: Well, no, Your Honor. I think that the justification would be that the State doesn’t have such an institution. The — a polygamous relationship would raise all kinds of questions that the State’s marriage laws don’t address. Scalia: Well, it would be the same argument. We don’t have such an institution. Our marriage in this State, which we constitutionally can have because the second question assumes that the first question comes out the way the United States does not want it to come out, the State says we only have the institution of heterosexual marriage. We don’t have the institution of same-sex marriage. Hallward-Driemeier: No. The institution is the institution of marriage, and the experience of those States — Scalia: Well, you’re saying that, but the State doesn’t. The State says the only institution we have is heterosexual marriage. Hallward-Driemeier: The — the point I’m making, Your Honor, I think is demonstrated by what has happened in those States where, by court order, States have had to permit same-sex couples to marry. All that has happened under their laws is that they have had to remove gender-specific language and substitute it with gender-neutral language. Sotomayor: Now, could I — could I — because I don’t — if you want to finish answering Justice Scalia’s — Hallward-Driemeier: I was going to say that — that plural relationships raise all manner of questions that are not addressed by this State’s current marriage laws. Alito: What if it’s not a plural relationship? What if one State says that individuals can marry at the age of puberty? So a 12-year-old female can marry. Would a State — would another State be obligated to recognize that marriage? Hallward-Driemeier: I — I think probably not. But the State would have, in that instance, a sufficiently important interest in protecting the true consent of the married person. And — and most States don’t recognize minors’ ability to consent, certainly not to something that is as important as marriage. But what we see, in fact, is that, quite in contrast to the non-recognition laws at issue here, the States do recognize the marriages of person who, by age, would not have been able to marry within their own States. That is the long-standing practice of all of the States, precisely because of the abomination, as it was referred to in the old treatises, of the notion that a — persons could have a different marital state in some jurisdictions than others. Sotomayor: Sir, how about the co-sanguinity situation? Virtually all states would recognize cousins through marriage getting married, but there’s at least one State that doesn’t; right? Hallward-Driemeier: Well, I — Sotomayor: Are you saying that that State is — Hallward-Driemeier: I think that the — that the constitutional test is the one that the Court set forth in the Zablocki, which is does the State have a sufficiently important interest not to recognize it? And certainly in the case of incest, the State does have a sufficiently important interest. Sotomayor: This is not incest. They’re not biologically tied. Hallward-Driemeier: Well, the States that I’m aware of that have the rules against cousin marriage do so under their incest statutes, and they simply define incest in a broad way that would encompass cousins to marry. At some point, certainly the familial relationship is too extenuated that I don’t think the State would have a sufficiently important justification. Kennedy: But Justice Alito’s question points out, the assumption of his hypothetical is — and — and of the way these cases are presented, is that the State does have a sufficient interest so that you need not allow the marriages in those — in that State. So there is a sufficient interest, under our arguendo assumption here, to — to say that this is not a fundamental right. But then suddenly, if you’re out of State it’s different. Why — why should the State have to yield? Hallward-Driemeier: Well, at the very least, you would have to analyze differently the interest that the State might assert for not allowing couples to enter marriage versus the — the interest that they assert as related to a couple who is already married. For example, Kentucky has asserted that its interest in only permitting opposite-sex couples to marry is to increase the birthrate. Well, now apply that theory to same-sex couples who are already married. They are already married in the States where they were married. They are already married in half the States in the country. Kentucky would have the Court believe that it is a sufficiently important interest to have that couple disregard their existing marriage vows and obligations to each other to marry someone else in Kentucky in order to procreate biologically even though the couple may already have children together. That, I would dare say, is not a rational justification, much less a sufficiently important one. Scalia: Well, I think — I think what Kentucky is saying is that the long-term effects of having same-sex couples in Kentucky will be, which you — you didn’t agree with, but what — what counsel for Respondent argued in the prior case, will be a — a reduction in — in — in heterosexual marriages and a — a reduction in the number of children born to those marriages. I mean, that — Hallward-Driemeier: Your Honor, this Court has rejected that type of speculation as a basis for drawing these distinctions before as it did in Loving. The State in Loving argued that it was too soon to know what the effect of interracial marriages would be and what the stigma would be on their children if not the biological — Scalia: But we will not have rejected it if we come out the way this question presented assumes we have come out. Hallward-Driemeier: Well, the State — Scalia: Mainly, saying that it’s okay for a State not to permit same-sex marriage. Hallward-Driemeier: The State asserts that it has an interest in the — the stability that marriage provides for children. That interest does not justify extinguishing marriages that already exist. Ginsburg: May we clear this one thing. If the Petitioner prevails in the first case, then the argument is moot; right? Hallward-Driemeier: That’s — that’s absolutely right, Your Honor. Ginsburg: So you are supposing a situation where the Plaintiffs do not prevail, and so a State can retain its ban on same-sex marriage. The question is has — does it have to recognize marriage from out of State? Would it make any difference if the couple came from the State where there is a ban on same-sex marriage, goes to a neighboring State that allows it, and then comes right back home again? Hallward-Driemeier: No, Your Honor. I don’t think that there would be such a distinction. And, in fact, none of these four States draws that kind of line that Your Honor presupposes. And that’s one of the points that’s so important here, is that as the Court observed with respect to DOMA in Windsor, the nonrecognition laws here are a stark departure from the State’s traditional practice of recognizing out-of-state marriages even though they could not have been celebrated within the State. It’s precisely that circumstance where the laws diverge that the issue arises. And the — the three States that have this issue, Tennessee, Ohio, and Kentucky, are, between them, able to identify only 5 instances in which they did not recognize a marriage that was valid outside the State, even though it could not have been celebrated inside. And those instances are incest, which we think the State would have sufficiently important justification not to recognize, miscegenation laws, not a precedent on which I think the Court would want to rely in this instance, or other interests that I think probably would not survive today, such as the — the rule against allowing a divorced person to remarry. So they’re — and — and more importantly, the most recent of those cases is from 1970. So the rule that the States cite about their ability to disregard, to effectively dissolve marriages that already exist, around which people have already begun to build their lives, is less applied than the Federal government’s own authority to define the — Roberts: Yes. But, again, I think you’re avoiding the presumption on which we’re starting, on the assumption, which is that the State’s policy for same — supporting same-sex marriage is sufficiently strong, that they are — they can, as a matter of public policy, prohibit that in their own State. And yet you’re saying it’s somehow so much weaker when you’re talking about marriages from other States. Hallward-Driemeier: I — I think there are a couple of points that I’d like to make in order to distinguish this situation from the — the question in the first case. In the first case, it was very significant that Respondents’ counsel was emphasizing that he thought it was merely rational basis scrutiny that would apply. But that was to the question of whether people should be allowed to marry in the first instance. Our Petitioners on Question 2 are already married. We know from Windsor, because the Court held, that once married, a couple has a constitutionally protected liberty interest in their marriage. We also know from Windsor that where a — a sovereign disregards that marriage in a way that would be extraordinary and out of character with tradition, that that requires, at the very least, careful consideration. And that’s — Roberts: It certainly — Hallward-Driemeier: — what we have here. Roberts: It certainly undermines the State interest that we would, assuming arguendo, have recognized in the first case, to say that they must welcome in their borders people who have been married elsewhere. It’d simply be a matter of time until they would, in effect, be recognizing that within the State. Hallward-Driemeier: Well — Roberts: Because we live in a very mobile society, and people move all the time. Hallward-Driemeier: And — and — Roberts: In other words, it would kind of — it — one State would basically set the policy for the entire nation. Hallward-Driemeier: Well, of course, there would be many fewer such couples raising children within their borders than heterosexual couples who are raising children who are not biologically linked to them. I have to say that I think that the arguments that the State has made are so over and underinclusive at the same time, that they leave the — the feeling that it can only be pretext. And we know that that’s true, because the State not only can’t draw the lines that they are purporting to, they don’t draw the lines that they’re — would suggest, and they would never draw the lines that they afford to — Roberts: Wait. I — I’ve lost you there. What — what lines are you talking about? Hallward-Driemeier: A line, for example, that limits marriage to those couples who are able to procreate biologically without any assistance. The States don’t draw those lines. The States have laws that treat adoptive relationships with the same legal effect as biological ones. They actually have laws that further support and — and give greater stability — Sotomayor: I thought your — Hallward-Driemeier: — to marriages that use — Sotomayor: — your argument — Hallward-Driemeier: — assisted reproduction. Sotomayor: — would be different. I thought that the States had never categorically passed a law declaring that a particular kind of marriage was against public policy. Hallward-Driemeier: That — that is certainly another way in which — Sotomayor: No one of the four States had ever done that? Hallward-Driemeier: They — they have never done that. They’ve never — Sotomayor: Until the DOMA issue came up. Hallward-Driemeier: That — that — these laws are — are out of character, unprecedented in the language of Romer in many respects. Alito: You’re saying that — Sotomayor: Well, they — Alito: You’re saying that the laws in some States, the States that you’re referring to that recognize only opposite-sex marriage are pretextual? Hallward-Driemeier: The — the — their — their nonrecognition laws are pretextual, yes, because the longstanding practice of these States is to recognize marriages that are validly celebrated elsewhere precisely because of — Alito: Well — Hallward-Driemeier: — the fundamental — Alito: — other than the distinction — we have the distinction between same-sex marriage and opposite-sex marriage. What is the next most dramatic variation that exists in the marriage laws of the States? Hallward-Driemeier: Well, at the time, certainly interracial marriage when — Alito: At the present time, what is — Hallward-Driemeier: Well — Alito: — most — the next most dramatic difference? Hallward-Driemeier: Well, I — I think that, if I could, the — the antimiscegenation laws actually are the closest analogy, but what’s different between them, if I could — because it goes to Justice Sotomayor’s question, and then I’ll try to answer yours — is — Alito: Well — well, I had asked a simple question. At the present time, what is the next most dramatic variation in the marriage laws of the States? Hallward-Driemeier: It probably is age. Alito: And what is the — what — what’s the range? Hallward-Driemeier: The — the — I think it goes from 13 to 18. And — but — but as I said before, the tradition of the States — the issue does not come up that much, but the tradition of the States is to recognize a marriage that was entered into by someone of an age that could not have been entered within the State, because of the nature of the marriage once it’s established, recognizing that the fundamental nature of that relationship is not one that the State should put asunder. Alito: Well, I thought you answered me earlier that a State could refuse to recognize a marriage in — contracted in another State where the minimum age was puberty. Hallward-Driemeier: Well, they — they could, and I do believe that if, in the individual case, it was shown that it was because of lack of consent, the — the State could decide not to recognize the marriage. But with respect to the categorical nature — Ginsburg: It would have to be shown, I think, the presumption would be in such a State that someone age 13 can’t consent. Hallward-Driemeier: The age 13, I think probably you’re right, but if it is a matter of 15 instead of 16, that the courts probably would recognize it, especially if, in reliance on their marriage, the — the couple had already conceived of a child, it would do no one any good to destroy that marriage and the stable environment that it might provide for the children, just as it does no one any good — it certainly doesn’t advance the interests of the children of opposite-sex couples to destroy the marriages that provide stability to the children of same-sex couples who are already married under the laws of other States. Roberts: I think your — your argument is pretty much the exact opposite of the argument of the Petitioners in the prior case. The argument that was presented against them is, you can’t do this, we’ve never done this before, recognized same-sex marriage. And now you’re saying, well, they can’t not recognize same-sex marriages because they’ve never not recognized marriages before that were lawfully performed in other States. Hallward-Driemeier: Well, what — Roberts: You’ve got to decide one or the other if you win. Hallward-Driemeier: No, I don’t think so at — at all, Your Honor. And — and I think that what’s — what’s essential and common between us is that we recognize that the marriage that our Petitioners have entered into is a marriage. It is that same institution, that same most important relationship of one’s life that this Court has held out as fundamental — Roberts: And maybe — Hallward-Driemeier: — in other cases. Roberts: — I’m just repeating myself, but we only get to the second question if you’ve lost on that point already, if we’ve said States do not have to recognize same-sex marriage as a marriage. So assuming you’ve lost on that, I don’t see how your argument gets — you can’t say that they are not treating the marriage as a marriage when they don’t have to do that in the first place. Hallward-Driemeier: Well, I — I think that that actually highlights one of the problems of trying to decide the — the two cases differently, because, of course, deciding against Petitioners on Question 1, even if the Court decides in favor of Petitioners on Question 2, would forever relegate those marriages to second class status and would raise all kinds of questions whether those marriages could be subjected to laws that are not quite so favorable as opposite — Scalia: You’re rearguing Question 1 now? Is that — is that what you’re doing? Hallward-Driemeier: No. No. I’m suggesting, though — Scalia: I thought you were. Hallward-Driemeier: — that even a win on Question 2 does not fully validate our Petitioners’ marriages, but certainly we think that the State cannot disregard them — cannot effectively dissolve existing marriages without a sufficiently important reason for doing so. This Court recognized in the Lawrence case that marriage, procreation, family relationships, childrearing are fundamental aspects of autonomy that same-sex couples can enter into, can choose for purposes of autonomy to the same extent as opposite-sex couples, especially when those couples have done so, have established a marriage, have brought children into — I’d like to give an example, if I could, because I think that it sort of brings home what’s really happening. Matthew Mansell and Johno Espejo married in California in 2008. In 2009, they adopted two children. Now, in reliance on the protection that is afforded by marriage, Mr. Espejo was willing to give up his job to give the primary caregiver of their children. Mr. Mansell is the primary breadwinner. His job in an international law firm was transferred from California to Tennessee, and the cost of that transfer for that job for them was the destruction of their family relationships, all that they had relied on in building their lives together. And in support of that, the States offer exactly nothing. There is no reason that the State needs to disregard that marriage. No reason the State needs to destroy the reliance that Mr. Espejo has had in giving up his career to look after their children. They are doing everything — Scalia: It would have been — it would have been the argument made with respect to the first question; namely, that the existence of same-sex marriages erodes, erodes the — the feeling of society regarding heterosexual marriages. Hallward-Driemeier: As I said — as I said before, Your Honor, I — I don’t think that that holds up because opposite-sex couples who have no children, who may be beyond childbearing years, when they move into these States, their marriages are entitled to respect, and yet they are situated precisely as our Petitioners are. Our couples, likewise, have marriages. They may not be able to procreate biologically together, but they are able to procreate through assisted means, through adoption. They bring children into their families just as opposite-sex couples do. And when, in reliance on their own State where they live, they move into these States, that marriage is destroyed. This Court relied on Federalism, the vertical kind, in Windsor to identify something that was highly unusual. In this case, it’s horizontal Federalism, I think, that identifies something that’s highly unusual. As part of a Federal form of government in which the States are equal, the States have ceded some form of their authority. And one is to — to recognize that when another State creates an enduring relationship, encourages people to, in reliance on the protections the law affords, to establish families, that it is not that other States are simply free to disregard that which those States have created. In the corporate context, once a corporation is established under the laws of one State, that corporation exists in all other States. Certainly, the families that our Petitioners have established are entitled to at least that same respect. I think that, Your Honor, it is quite interesting to note that in the first argument, Michigan was forced to argue some positions that I think are quite astonishing, that the State could limit marriage to couples who are capable of procreation without assistance or indeed, that it could abolish marriage altogether. It’s our clients who take marriage seriously. They took vows to each other and bought into an institution that, indeed, as this Court has said, predates the Bill of Rights, that is the most important and fundamental in their lives, and the State should offer something more than mere pretext as ground to destroy it. Ginsburg: The State’s rationale is we — we treat outsiders the same way we treat insiders. Hallward-Driemeier: Well, thank you, Your Honor. They — they certainly have offered that, but what the State ignores is that these so-called outsiders are already married. The State, it’s true, says, well, we have same-sex couples in our State, and we don’t allow them to marry, so we’re going to — to treat you the same way. Well, they ignore that our clients have already formed those relationships, and I think that it would be, in terms of the interests that distinguish between the two questions, it’s — it’s helpful to think again, perhaps, about heterosexual couples. We don’t think that a State could limit marriage to only those couples who are capable of procreation. We don’t think it could preclude marriage by women who are 55, but it would be quite a different and distinct constitutional violation for the State to dissolve the marriages of opposite-sex couples when the woman reaches 55. I don’t think that that’s constitutionally permissible. The States don’t do that and, of course, they never would do that, because the essential protection against arbitrary laws is that the majority has to live under the same laws that they would subject the minority to. And there is no chance that the majority would subject themselves to such a law as that. I’d like to reserve the remainder of my time. Roberts: Thank you, counsel. Mr. Whalen. Whalen: Mr. Chief Justice, and may it please the Court: The Fourteenth Amendment does not require States with traditional marriage laws to recognize marriages from other States between two persons of the same sex. Scalia: What about Article IV? I’m so glad to be able to quote a portion of the Constitution that actually seems to be relevant. “Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State.” Now, why doesn’t that apply? Whalen: Your Honor, this Court’s cases have made clear that the Court draws a distinction between judgments between States and the laws of each State. And the reason in part that the Court’s decisions have said that is that otherwise, each State would be able to essentially legislate for every other State. Scalia: Public acts? It would include the act of marrying people, I assume. Whalen: My understanding of this Court’s decisions as the reference in the Constitution to public acts is that each State’s laws. Scalia: So there — there’s nothing in the Constitution that requires a State to acknowledge even those marriages in other States that — that are the same. Whalen: That’s essentially correct, Your Honor. Scalia: Really? Whalen: Under this Court’s decisions, that’s — that’s essentially right. There has been under the jurisprudence with regard to Allstate Insurance and Alaska Packers and so forth that there’s — there’s a minimal due process requirement to decline to apply another State’s substantive law. Scalia: We — we can say the only marriages we acknowledge in — in New York are marriages concluded in New York; is that possible? Whalen: I’m sorry? I don’t — Scalia: New York can say the only marriages we acknowledge in New York are those marriages that have been made under the laws of New York. Whalen: Yes, Your Honor. Scalia: Really? Whalen: If I’m understanding your — if I’m understanding your question correctly. Roberts: What case is that? What case would you cite to support that proposition? Whalen: I’m not sure if I understood the question correctly, Your Honor. Breyer: He said — I mean, I already have several cases to read. I might as well get another one. (Laughter.) Breyer: What — what is the case that holds that the State of New York has the right to recognize only marriages made in New York? And when — if you marry in Virginia, New York has the constitutional right to say, we treat you as if you weren’t married, whoever you are. Whalen: I did — I did misunderstand the question. My understanding of the question was whether New York could decline to recognize an out-of-state marriage that did not comport with New York’s law. Scalia: That’s not what I said. Ginsburg: Because it is clear that if the law of the two States is the same, that was used against Fedder, the State cannot say we won’t apply the other State’s law, even though it’s the same as our own. Whalen: Even though it’s the same as ours? Ginsburg: Yes. Breyer: Like New York. For example, I happen to know has a law that a Federal judge from Washington couldn’t marry someone. I mean, you can get married to your own wife, et cetera, but you can’t marry two other people, but the District of Columbia has the opposite law. So if I marry two people in Washington D.C. and they happen to move to New York, you are saying that New York doesn’t have to recognize that marriage because it doesn’t comport with the marriage of New York; is that your point? Whalen: Yes, Your Honor. I think that’s — Breyer: And then what case says that? I think there are a few people going to get nervous about this. (Laughter.) Whalen: My — my answer is based on essentially this Court’s decision in Nevada v. Hall, because the State’s own law sets its own policy and the other State’s law would be in conflict with that State’s policy. Breyer: But here the policy would be we distrust Federal judges from outside the State. And even that, they would get away with, in your view, because I’m next going to ask, and what is the difference between that kind of policy and the policy that says, well, we don’t recognize the gay couple’s marriage for the reason that we fear that if gay couples get married, even if they have children and adopt them, and even if we allow people who are not gay to get married and they don’t have children, despite all that, this policy, which I’ve had a little trouble understanding, warrants not recognizing it? Did you follow that question? It was a little complicated. Whalen: I — I probably did not, but I’m going to try to answer. I — I think the underlying focus is not just that there’s a policy, but that there’s a legitimate policy. And as this Court’s questions earlier indicated, I proceed now on the assumption that the Court has decided the first question in the State’s favor, and is determined that, indeed, the State’s policy to maintain a traditional man-woman definition of marriage is, indeed, legitimate, and we obviously agree that it is, and the Court should so decide. So — Sotomayor: So you don’t see — Scalia: But none of this has anything to do with Article IV, right? None of this has anything to do with Article IV? Full faith and credit, right? Whalen: It — full faith and credit provides the background for the — for the States to be able to assert that, indeed, we have the right to decline to recognize the out-of-state marriage based on the out-of-state — Ginsburg: You’re — Whalen: — law — Ginsburg: You’re making a distinction between judgments — full faith and credit applies to judgments. You can’t reject a judgment from a sister State because you find it offensive to your policy, but — Whalen: Yes, Your Honor. Ginsburg: — full faith and credit has never been interpreted to apply to choice of law. Whalen: Yes, Your Honor. Ginsburg: That — that’s the distinction. Whalen: Yes, Your Honor. And — and so, in — in essence, by deciding whether or not to recognize another State’s marriage, the — the State is deciding whether or not to recognize the other State’s law under which that marriage was performed. Sotomayor: I’m sorry. You don’t see a fundamental difference between creating a marriage and recognizing a marriage? You don’t think there’s any difference in terms of the rights of people? If States regularly don’t say that the prerequisites to marriage in our State are not necessarily against public policy — and they have said it for age differences, they have said it for a lot of things, why — why would the gay marriage issue be so fundamental that that can lead them to exclude a whole category of people from recognition? Whalen: It goes, Your Honor, to the essence of what I think, in fact, both — both questions before the Court today get at. And that is that — the fundamental notion of what marriage is. And — and let me answer the question, if I could, in this way. The — the comparison between how States have operated with regard to recognizing or not recognizing marriages before, in other words, before there was any idea of same-sex marriage, can’t be compared at all to how States are responding across the board with regard to the phenomenon of same-sex marriage. And here’s the reason: Commentators have observed that when all States are on the same page about what marriage is, that’s where the place of celebration rule evolved from, that every State had the same definition. Every State shared the same interest, and so there was a liberal policy of recognizing marriages from one State to the other because — Sotomayor: You think marriage — Scalia: That’s just not — Sotomayor: — decrees are closer to laws? Whalen: I’m sorry? Sotomayor: You think marriage decrees are closer to laws than they are to judgments? Whalen: I do — Sotomayor: I mean, you need to get a judgment to divorce. And I think that, in my mind, that makes the decree much closer to a judgment than it does to a law. Whalen: I — I think that the — the performing of a marriage is closer to law is because, in essence, when the marriage is performed, all the rights that flow from that State’s laws evolve to that couple. And it’s different than judgments and so does not deserve the same kind of treatment that judgments would, under the full faith and credit jurisprudence, because of the reason that this Court drawn that distinction. Sotomayor: So what is an order under the Constitution, or — Sotomayor: — an act under the Constitution that’s not a judgment? Whalen: I didn’t catch the first part of your question, Your Honor. Sotomayor: How do you separate out the terms that Justice Scalia gave you? They’re not all judgments. Whalen: No. I — I — Sotomayor: Three different terms were used, or four different terms were used. Whalen: Acts, records, and judicial proceedings is what I understand — Sotomayor: Acts — Whalen: — what I recall and that — Sotomayor: — records — Whalen: And my understanding of the Court’s jurisprudence has been that that refers to laws and records and judgments of another State. And marriages have always been treated as a conflict of law matter throughout all the years — in fact, it — it gives rise to the entire conflict of law doctrine on — on which Petitioners rely here, which is Joseph Story’s Commentaries — Commentaries on the Conflict of Laws. Roberts: This second — outside of the present controversy, when was the last time Tennessee declined to recognize a marriage from out of state? Whalen: Any marriage, Your Honor? Roberts: Any marriage. Whalen: 1970 is the last one that I could point to. That involved a stepfather and stepdaughter. I would — I would hasten to add, though, because of where — what I was starting to describe with regard to how we got to this point, while — while States were all playing along under the same definition of marriage, what they confronted in an unprecedented fashion was some States changing the rules of the game, if I can extend the metaphor, and so — Roberts: Well, but they weren’t playing along with the same definition. There have always been distinctions based on age and family relationship. So they weren’t playing along under the same definition. And still, despite that, it apparently is quite rare for a State not to recognize an out-of-state marriage. Whalen: It — it was and is quite rare, so long as we’re talking about what marriage is, so long as we’re talking about the fundamental man and woman marriage. And that — and that’s my point, is that as soon as States were confronted with the reality that some States were going to redefine marriage or expand the definition of marriage to include same-sex couples for the first time, then it’s unsurprising that they would determine, in keeping with their own laws, that they would not recognize those other States’ marriages in — in Tennessee. Alito: This second question puts both you and Mr. Hallward-Driemeier in a very unusual situation, because, first of all, we have to assume that this first question has been decided against the Petitioner, or we wouldn’t get to the second question. So we have to assume that we would hold that a State has a sufficient reason for limiting marriage to opposite-sex couples. And Mr. Hallward-Driemeier acknowledged that a State could refuse to recognize an out-of-state marriage if it has a very strong public policy against that marriage, if it’s a polygamous marriage, if it’s a — a marriage of very young individuals. So the question is whether there could be something in between. So there — there’s a — a sufficient reason to — for the State to say, we’re not going to grant these licenses ourselves, but not a strong enough reason for us not to recognize a marriage performed out of state. I suppose that’s possible, isn’t it? Whalen: Well, let me answer it this way, and hopefully I’ll — I’m answering your question in doing so. Let me be clear. The — the justifications that have grown over time and the requirement for a strong public policy reason to decline to recognize a marriage have grown up around the man-woman definition. Our position is that so long as we’re talking about a marriage from another State that is not the man-woman definition, that it is simply the State’s interest in maintaining a cohesive and a coherent internal State policy with regard to marriage that justifies not recognizing those marriages. Otherwise, as — as the question that was put earlier indicated, any resident of the State could go to another State, get married, come back and demand to have their — their marriage recognized. Sotomayor: That happens already. People who are not permitted to be married in a lot of States go and do that, and they come back to their home States, and the home States follow the rule of marriage celebration. Whalen: And — and, again, we’re talking about the fundamental distinction between marriage as the States see it, the traditional definition, and the same-sex marriages that other States have — Sotomayor: Well, they have — Whalen: — have adopted. Sotomayor: The prerequisites are always a State’s judgment about marriage, about what should be a recognized marriage. Whalen: But, Your Honor, the — the — Sotomayor: They make exceptions. Whalen: — the difference here, I think, is — is the — the landscape that we find ourselves in. Tennessee, Ohio, Kentucky, and other States with a traditional definition of marriage have done nothing here but stand pat. They have maintained the status quo. And yet other States have made the decision, and it certainly is their right and prerogative to do so, to expand the definition, to redefine the definition, and then to suggest that other States that have done nothing but stand pat now must recognize those marriages imposes a substantial burden on the State’s ability to self-govern. Ginsburg: It is — it is odd, isn’t it, that a divorce does become the decree for the nation? A divorce with proper jurisdiction in one State must be recognized by every other State, but not the act of marriage. Whalen: I — I understand the point, Your Honor, and, again, I think it falls within the Court’s recognition of a distinction between judgments and laws. And here I think we’re dealing only with laws, and, again, it would allow one State initially — literally one State, and now, a minority of States to legislate fundamental State concern about marriage for every other State quite literally. That’s — that’s an enormous imposition and an intrusion upon the State’s ability to decide for itself important public policy questions and to maintain — particularly when you’re talking about recognition. There — there is an impact that occurs when one State is asked to recognize another State’s same-sex marriage because of the fact that its entire domestic relations policy has been built around the expectation and the presumption that there is a man-woman relationship. That — in Windsor, this Court recognized and observed that marriage is the foundation of the State’s ability to regulate domestic relations. And to give you one concrete example that is — that it comes up in this case itself. One of the incidents of marriage is the child — the presumption of parentage that comes with a marriage. And for the State to be required to recognize another State’s marriage where there is a child of that marriage in a same-sex situation would fundamentally alter the State’s definition of parentage, which I can tell you — Roberts: Well, I don’t understand your argument. I understand your argument that it’s a fundamental public policy question about whether you’re going to recognize same-sex marriage or not. But I don’t see the difficulty in following the consequences of that under domestic relations law as treating a couple as married. And it — and so the first question is a big step, but after that, it seems to me that the question of how you apply the domestic relations law is pretty straightforward. Whalen: Well, it — that’s part of the reason why I wanted to mention this in particular because a large part of the Petitioners’ focus has been on the impact on the children that are involved. And — and I think it’s important for the Court to recognize that in many States — and I can tell you in Tennessee that the definition of parent has always been biologically-based. That marital presumption of parentage has its foundation in biology. It has its foundation in the man-woman relationship. So when and if a State were required to recognize a same-sex marriage and so therefore, change the pronouns and change the terminology to apply — Sotomayor: Oh, but you do that for adoptions. What’s — what’s the problem? Whalen: Because — Sotomayor: This — this is a really big deal? Whalen: It — it is a big deal, Your Honor, because you are changing the way the State defines a parent. And in the adoption context, you have to understand adoption and the traditional definition of — of marriage, they work in tandem. They work together. And as Mr. Bursch described, the objective with regard to marriage is to link children with their biological parents. When that breaks down, then there’s adoption. And so yes, there’s an effort to — Sotomayor: Do you think that a State can fail to recognize the birth certificate of a particular — another State? Whalen: I’m not — Sotomayor: Just that. Do you think the word “records” in the Constitution includes birth certificates? Whalen: Yes. Sotomayor: So California without any reason, no suspicion of fraud, no anything, could it refuse to recognize another State’s birth certificate? Whalen: I — I have to admit, Your Honor, I — I can’t speak to that intelligently. Sotomayor: Records to me has to have a meaning. Whalen: Record has a meaning. It does, Your Honor. The reason that I’m hesitant is that I know that there — there is disagreement in the — in the cases about exactly what the impact of that is between whether that just means we have to acknowledge the existence of the record for the evidentiary purposes, or whether the effect of the record has to be acknowledged. And as I stand here I can’t speak to it. Sotomayor: I recognize that that’s an issue. Whalen: Yes, Your Honor. Sotomayor: But if a birth certificate were to be a record, don’t you think a marriage certificate — it’s an official act of a State. Whalen: Well, the — the marriage certificate — Sotomayor: As a record. Whalen: — certifies — and I guess it goes exactly to the point. It certifies the fact that there was a marriage. I think that the laws that allowed that marriage to occur, when they are different fundamentally with the laws of a State like Tennessee, preclude the application of that same principle from one State to the other. With regard to the effect of requiring recognition on a State, I think it’s important also to consider the fact that the Petitioners have complained about the impact that it has when they move from one State to the next with regard to the rights that they enjoyed under the marriage as it was defined in New York, for example, or California. Federalism accommodates this situation. It is the strength of our Federal structure to accommodate the very difference of viewpoint and the very difference in approach that this fundamental debate that we’re having about same-sex marriage generates. And so it makes all the sense in the world, with respect to that, to allow the Federal structure to do what it was designed to do and to accommodate those different points of view. And that is why we asked the Court to determine that the Fourteenth Amendment does not come in and then disrupt that balance and impose a duty on one State to recognize the laws and recognize the marriage of a different State because of the intrusion that it would have on that State’s public policy. Kagan: Mr. Whalen, just a quick question. Whalen: Yes, Your Honor. Kagan: You — you acknowledge that if the State loses on the first question, then the State also loses on the second question? It’s a fortiori? That’s — Whalen: I do, Your Honor. Kagan: Okay. Whalen: Yes, Your Honor. If there are no further questions, we ask you to affirm. Roberts: Thank you, counsel. Whalen: Thank you. Hallward-Driemeier: Mr. Hallward-Driemeier, you have five minutes left. Thank you, Your Honor. If I may start with the assertion that Tennessee law has always rooted parental relations in biology, that is not so. Tennessee law — and I’m going to quote from chapter 361.1. — I mean — sorry. It’s 68.3.306 referred to on page 15 of our reply. It provides that a child born to a married woman as a result of an artificial insemination with consent of the married woman’s husband, the father is deemed the legitimate child of the husband and wife, though the husband has no biological relationship with the child. Tennessee, in other words, just as it does with adoption, reinforces the bonds of parent and child irregardless of biology, as long as the — a parent — or as long as the couple is of opposite sexes. The import of that for real people, like Drs. Tanco and Jesty, is that they, who fell in love and married while in graduate school in New York, as many academic couples, were only able to find a position at a same university in Tennessee. They moved there, and Dr. Tanco has given birth to their daughter in Tennessee. Now, as a result of the nonrecognition laws, when, as occurred last week, their daughter is hospitalized, Tennessee would treat Dr. Jesty not as mom, but as a legal stranger with no right to visit her child, no right to make medical decisions for her. These laws have real import for real people. And although, I think that counsel was suggesting that Federalism and allowing States to make different laws, if you choose to get married in your State, just don’t move to ours. That’s the cost of Federalism. Well, Sergeant Dekoe and his husband, Mr. Kostura, didn’t have a choice. The United States Army moved them to Tennessee, and given the location of Army bases in this country, it’s almost a certainty that anyone serving in the Army for any length of time will be stationed at some point in a State that would dissolve their marriage as a matter of State law. I want to get back, Justice Sotomayor, to your comment about categorical and how unprecedented it is, because even in the age of antimiscegenation laws, the States would give effect, for some purposes, interracial marriages such as for purposes of estate, giving out the — the proceeds after a death or — or otherwise. Here, however, the State statutes provide that a marriage shall be given no effect for any reason. Even Jim Obergefell’s husband’s death certificate will not reflect the fact that he was married or the name of his husband. The State has no legitimate interest for denying them the dignity of that last fact regarding his life. The real import of the State’s argument is, I believe, this: That even when same-sex couples are married, they are not, in their view, married for constitutional purposes; that the States can discriminate against these marriages even in ways that the Constitution would not permit the States to disregard the marriages of opposite-sex couples. I urge the Court not to enshrine in our Constitution a second-class status of these Petitioners’ marriages. Thank you very much. Roberts: Thank you, counsel. Case is submitted.

3 Comments

  • Tim Miller

    I would argue that the government's interest will rarely if ever outweigh the citizens interest unless there is an Eminent threat to the community. The balancing of interest mode of interpretation does not appear balanced at all. Using a rational base test to determine issues at hand is dubious. The goverment will always argue an interest in the matter. But I'll say this the more laws there are the less liberty there is and we have an abundance of laws and a goverment with the resources to enforce them and because the government has a monopoly on the use of force in this country are backs are against the wall and the courts should expect the people to lash out the goverment because a people who have no freedom nor liberty are not supposed to behave.

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