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Eric Davis: Ruling looms on same-sex unions

The U.S. Supreme Court announced last week that it will hear cases on same-sex marriage later this year. The cases come from four states — Kentucky, Michigan, Ohio and Tennessee — where state statutory or constitutional prohibitions on same-sex marriage were ruled unconstitutional by lower federal court judges but were then reinstated by a federal appeals court on a 2-to-1 vote.
The Supreme Court announced it will consider two questions in the upcoming cases. First, is it constitutional for a state to limit marriage to opposite-sex couples? Second, is it constitutional for a state to refuse to recognize a lawful same-sex marriage from another state?
By formulating the questions in this way, the Court has left open the possibility that its upcoming ruling will be less than a full holding that state prohibitions on same-sex marriage are always unconstitutional. The Court could rule that, although states must recognize same-sex marriages from other states, their legislators and voters could continue to limit marriage within the state to opposite-sex couples.
In 2013, the Supreme Court struck down those parts of the federal Defense of Marriage Act that prohibited federal agencies such as the IRS, the Veterans Administration and Social Security from treating same-sex couples lawfully married under state law as married couples for purposes of federal programs.
The same reasoning could be used to strike down state policies that do not recognize out-of-state same-sex marriages for such purposes as state income taxes, health insurance benefits, family law, and wills and estates. If the federal government must recognize same-sex marriages from those states that permit them, all other states must do so as well.
The question the high court did not answer in 2013 is whether the 14th Amendment to the United States Constitution encompasses a federal right for same-sex couples to marry, regardless of policies in the states in which they happen to live. This question is squarely presented by the cases the Supreme Court recently agreed to hear.
I am not sure how the Supreme Court will rule on this question. In 1967, the Supreme Court held that state restrictions on interracial marriages were unconstitutional. But the Court in 2015 may not apply the same framework to the analysis of same-sex marriage as it did to interracial marriage nearly 50 years ago.
Because the 14th Amendment was written right after the Civil War, the Supreme Court has consistently held that this historical context requires states seeking to justify race-based classifications to meet an especially high burden of proof. Some justices — perhaps a majority — are not yet persuaded that classifications based on sexual orientation need to be justified according to such a high standard. For these justices, a justification based on a “rational basis” may be enough.
The plaintiffs in the Michigan same-sex marriage case went to great lengths at the federal trial court level to show that there was no “rational basis,” on the basis of procreation, the upbringing of children, reducing the incidence of divorce, or any other reason, for the state of Michigan to forbid same-sex couples from obtaining the benefits of marriage.
Will this evidence be enough to convince a majority of the Supreme Court justices that a state can come up with no “rational basis” for limiting marriage to opposite-sex couples? Or will the justices decide that sexual orientation, like race, is a classification requiring more than just a “rational basis,” and that states must allow same-sex marriages as a constitutional right? These are the questions that will likely determine whether the Supreme Court will hold that same-sex couples have a federal constitutional right to marry.
Eric L. Davis is professor emeritus of political science at Middlebury College.

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