Plaintiffs: No, You Can't Unmarry Us

After hearing 90 minutes of argument on the first question as to whether the U.S. Constitution requires states to perform same-sex marriages, the nine justices of the Supreme Court heard one hour of oral argument about whether states are constitutionally required to recognize legal same-sex marriages performed in other states.

The discussion focused largely on a hypothetical decision against marriage equality regarding Question 1, since a pro-equality decision would render Question 2 moot. Both sides agreed that if the court rules in favor of the same-sex couples regarding the first question, it must subsequently rule in favor of the recognition of those marriages, as discussed in the second question.

Because of this, as Justice Samuel Alito put it, attorneys on both sides were in "a very unusual position," arguing from a place that presumed the court had upheld a state's right to ban marriage for same-sex couples but could still consider whether such marriages from other states must be recognized.

Arguing on behalf legally married same-sex couples was Douglas Hallward-Driemeier, who opened his argument by noting that the plaintiffs in the case are already married.

"A state should not be allowed to effectively dissolve that marriage without a sufficiently important justification to do so," said Hallward-Driemeier.

Almost immediately, Alito asked Hallward-Driemeier to clarify if the question currently before the court was whether states had an obligation to recognize same-sex marriages performed in another state, even if the state in question did not perform such unions.

Hallward-Driemeier agreed that that was indeed the question currently before the court. "This court's decisions establish that there is not only a right to be married but a right to remain married," he continued, according to the official transcript of the hearing. "That there is a protected liberty interest in the status of one's marriage once it has been established under law."

That's when Justice Antonin Scalia asked the pro-equality attorney if a U.S. state would similarly be required to recognize a polygamous marriage if that marriage was legal in the international jurisdiction where it was performed.

Hallward-Driemeier replied that the "state could assert justifications" for not recognizing such a union, which Justice Scalia then speculated would be because such a relationship is "contrary to the state's public policy."

But Hallward-Driemeier redirected the justice's assumption.

"I think that justification [to not recognize a polygamous marriage] would be that the state doesn't have such an institution," said Hallward-Driemeier. "A polygamous relationship would raise all kinds of questions that the state's marriage laws don't address."

"Well, you're saying that, but the state doesn't," replied Scalia. "The state says the only institution we have is heterosexual marriage."

To illustrate his point, Hallward-Driemeier highlighted the experience of states that have been court-ordered to embrace marriage equality. "All that has happened under their laws is that they have had to remove gender-specific language and replace it with gender-neutral language," Hallward-Driemeier explained. Those states have not had to reformulate the entire structure of legally recognized marriages to accommodate same-sex couples within the institution -- they've just had to amend their language.

Expanding on the hypothetical situations, Justice Alito asked Hallward-Driemeier if all states would be required to recognize the marriage of a 12-year-old female, if one state decided to allow citizens to marry at the age of puberty.

Hallward-Driemeier navigated the question deftly, noting that there would be a separate issue of the legitimate state interest in protecting the young person's true ability to consent -- particularly because most states do not recognize a minor's legal ability to consent, "certainly not to something that is as important as marriage."

Several justices questioned Hallward-Driemeier about how the court's decision regarding the first question in these cases (if the Constitution requires states to perform same-sex marriages) could impact the outcome of this second question, regarding legal recognition. But none summarized the issue as succinctly as Justice Ruth Bader Ginsburg.

"If the Petititoner [same-sex couples] prevails in the first case, then this argument is moot, right?" asked Ginsburg.

Hallward-Driemeier said, "That's absolutely right."

In that case, Ginsburg continued, the entire conversation around Question 2 operates on the assumption that the court does not find a constitutional requirement for all states to extend marriage to same-sex couples, concluding that a state may retain its ban on such marriages.

"The question is, Does it have to have to recognize marriage from out of state?" asked Ginsburg summarily. "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?"

Such a hypothetical situation would make no difference. "In fact, none of these four states draws that kind of line" suggested by Ginsburg, Hallward-Driemeier said. "That's one of the points that's so important here ... 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."

In fact, Hallward-Driemeier continued, officials from Tennessee, Ohio, and Kentucky were able to identify only five instances in which the state did not recognize a marriage performed in another state that could not be performed in the state in question.

"And those instances are incest, which we think the state would have sufficiently important justification not to recognize, miscegenation [interracial marriage] 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 rule against allowing a divorced person to remarry," Hallward-Driemeier explained.

More importantly, the most recent of those cases arose in the 1970s, Hallward-Driemeier noted.

Justice Alito asked Hallward-Driemeier what the next greatest variation in marriage laws from state to state was, after those banning the recognition of same-sex marriage.

Hallward-Driemeier said the greatest difference would be in age of consent, which ranges from age 13 to 18 across various states.

"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," explained Hallward-Driemeier. "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."

But that's exactly what the state of Tennessee did in the case of plaintiffs Matthew Mansell and his husband, Johno Espejo, explained Hallward-Driemeier. The couple married in 2008 in California and adopted two children in 2009. Mansell, an attorney at an international law firm, was the primary breadwinner, prompting Espejo to leave his job to be a stay-at-home dad. But when Mansell's job transferred the family to Tennessee, the men were forcefully unmarried by the state, revoking the legal protections they had relied upon when creating their family.

"The cost of that transfer for that job for them was the destruction of their family relationships," explained Hallward-Driemeier. "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."

In response, Justice Scalia asked whether the defense offered by the states on Question 1 -- that the very existence of marriage equality erodes "the feeling of society regarding heterosexual marriages" -- carried any weight for Question 2.

"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," Hallward-Driemeier replied.

"Our couples, likewise, have marriages," he continued. "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."

In closing his initial statement, Hallward-Driemeier noted that the state's claims advanced earlier in the day crumble under even rational basis scrutiny. States would never seriously consider limiting marriage to those who are willing and able to procreate -- just as it would be baldly unconstitutional for a state to dissolve the marriage of a woman after she passes the age of childbearing, around 55 years old.

"The states don't do that and, of course, they would never 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," he concluded. "And there is no chance that the majority would subject themselves to a law such as that."

At that point, Joseph Whalen, the associate solicitor general for Tennessee, approached the court. Whalen delivered one sentence of his opening statement before one of the justices interjected.

"The Fourteenth Amendment does not require states with traditional marriage laws to recognize marriages from other states between two persons of the same sex," said Whalen.

"What about Article IV," asked Scalia, going on to quote that article. "'Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of eery other state.' Now, why doesn't that apply?"

Whalen explained that his understanding of current precedent around the issue was that the court "draws a distinction between judgments between states and the laws of each state." Otherwise, each state would essentially be able to make laws for every other state in the union, Whalen contended.

"So there's nothing in the Constitution that requires a state to acknowledge even those marriages in other states that are the same?" asked Scalia.

"That's essentially correct," replied Whalen.

Whalen again stated that Scalia was correct in understanding that technically, New York could decide to only legally recognize marriages performed in New York.

That's when Chief Justice John Roberts asked for a case citation to support Whalen's claims.

After some back-and-forth and clarifying statements from the Justices, Whalen eventually pointed to Nevada v. Hall, which he said allows a state to set its own policy, even if that policy conflicts with laws in other states.

Whalen went on to clarify that he considers marriage licenses to be closer to a law than a judgment, even after Justice Sotomayor noted that married couples must receive a judgment to divorce. And under the full faith and credit clause, states do not have to recognize one another's laws to the same degree that they would a judgment, he said.

Chief Justice Roberts asked Whalen when, aside from the same-sex marriages at issue in this case, was the last time Tennessee refused to recognize a marriage legally performed in another state.

"1970 is the last one that I could point to," replied Whalen. "That involved a stepfather and stepdaughter."

What's more, Whalen argued, when the "place of celebration" rule was first established, the vast majority of states agreed upon the "traditional definition" of man-woman marriage.

But Roberts pushed back on that assertion. "They weren't playing along with the same definition," Roberts said, using Whalen's phrasing. "There have always been distinctions based on age and family relationship. ... And still, despite that, it apparently is quite rare for a state not to recognize an out-of-state marriage."

Whalen agreed that it was uncommon for a state not to recognize an out-of-state marriage, "so long as we're talking about the fundamental man-and-woman marriage."

"As soon as the states were confronted with the reality that some states were going to redefine 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 recognizer those other states' marriages in Tennessee," he said.

"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 coherent internal state policy" not to recognize those marriages, said Whalen. "Otherwise ... any resident of the state could go to another state, get married, come back and demand to have their marriage recognized."

"That happens already," noted Justice Sotomayor. "People who are not permitted to marry 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 conceded that such a scenario does indeed happen, but stuck by his claim that all of the unions recognized in such a situation adhere to the "traditional definition" of marriage.

Responding to the plaintiff's claims that recognizing existing same-sex marriages protects the children who are a product of those families, Whalen argued that such a recognition mandate would require Tennessee and other states to alter the way they define legal parentage.

"I can tell you in Tennessee that the definition of parent has always been biologically based," said Whalen. "That marital presumption of parentage has its foundation in biology. It has its foundation in the man-woman relationship."

Justice Sotomayor interjected that the state already reconsiders that biological relationship when it formalizes adoptions.

"You have to understand adoption and the traditional definition of marriage, they work in tandem," claimed Whalen. "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."

When Sotomayor pressed Whalen on whether a state-issued birth certificate would be a "record" that must be recognized under the full faith and credit clause, Whalen said he couldn't speak intelligently to the question.

In his final rebuttal, Hallward-Driemeier essentially picked apart each of the state's claims by using real-world examples faced by the plaintiff couples.

Regarding the state's claim that it has always rooted parental relationships in biology, "that is not so," said Hallward-Driemeier. Current Tennessee law indicates that a child born to a woman via artificial insemination will have the woman's husband recognized as child's father, even if that man has no biological relation to the child his wife bore. But Tennessee only applies that law to opposite-sex married couples, Hallward-Driemeier explained.

"The import of that for real people, like Drs. Tanco and Jesty [two of the plaintiffs], is that they, who fell in love and married while in graduate school in New York ... were only able to find a position at the same university in Tennessee," said Hallward-Driemeier. The women moved to Tennessee, where Tanco has since given birth to the couple's daughter.

"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."

Hallward-Driemeier went on to reject the state's claim that same-sex couples could simply choose not to live in states that do not recognize their marriage. That wasn't an option for Sgt. Deoke and his husband, Mr. Kostura, explained Hallward-Driemeier. "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 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."

Finally, Hallward-Driemeier addressed an earlier question from Justice Sotomayor regarding the piecemeal recognition given to interracial couples even in states with antimiscegenation laws. Many of those states, Hallward-Driemeier noted, recognized interracial marriages for estate purposes, allowing a surviving spouse to receive the proceeds of their late spouse's estate.

But when it comes to same-sex couples, the states in question aren't willing to extend even that basic level of recognition, said Hallward-Driemeier. Nowhere is that better illustrated than in the case of Ohio plaintiff Jim Obergefell, whose husband died last year after battling ALS. Because Ohio does not recognize same-sex marriage, Obergefell was not listed as the surviving spouse of his late husband, John Arthur, on Arthur's death certificate.

Hallward-Driemeier aptly summarized the position of the states thusly:

"Even when same-sex couples are married, they're not, in [the states'] view, married for constitutional purposes," he said. "I urge the court not to enshrine in our Constitution a second-class status of these petitioners' marriages."