Neal Katyal is the former acting solicitor general. In an interview with Variety, he lays out possible scenarios for how the Supreme Court will decide Obergefell v. Hodges, which addresses same-sex marriage — but does not guarantee equal rights in other areas for LGBT people.
What do you see as the different scenarios for the way in which the court could rule?
Basically there are two boxes. One is that marriage equality is constitutionally compelled, that even if 100% of the people in a state want these prohibitions on same-sex marriage and they want to limit marriage to a man and a woman, that is unconstitutional, across the table. And the state can’t do it. That is the view of almost every court to hear this issue in the last two years.
The other big box is, no, we live in a democracy, and in a democracy it is the public who gets to decide questions about who can marry whom. That is the view the Court of Appeals for the 6th Circuit in Ohio took, which has now gone to the Supreme Court.
Now there are more complicated possibilities. Probably the most obvious one is that the court asks the parties to answer two questions. One is: Is a state compelled to recognize same-sex marriage, and the second question is, if they are not compelled to recognize it, what about if someone is married in another state, do they then have the full rights of marriage if they move to a state that generally doesn’t permit same-sex marriage?
Some people before the oral argument thought that is a compromise option: “We are not going to require all 50 states to recognize same-sex marriage, but we will say that if people get validly married in one state, they can travel to other states and have their marriage recognized.” That was floated as a compromise option.
I think the oral arguments and the briefing by the parties really underscored that was an unlikely possibility for the court because they really have to decide the ultimate big question: What does the Constitution say about the right to marriage? If they they think it is truly unconstitutional, they are going to strike down these prohibitions, and if they don’t, then they are going to leave them standing.
If they do find that it is unconstitutional, what impact could it have on other areas, like workplace discrimination?
It depends on what they say, but not a huge amount on the private sector. Strictly speaking as a legal matter, I think it is a kind of social, cultural, even government legislation matter if the Supreme Court rules in favor of same-sex marriage. It will certainly be a shot in the arm to those who advocated for anti-discrimination in other aspects of life besides marriage. But strictly speaking, legally no.
The reason is that the Constitution only prohibits illegal state action, illegal government action. It doesn’t speak to what private citizens can do. For that, you need separate laws. And that is why, for example, Title 7 prohibits discrimination in employment for private employers. So even though it is unconstitutional for the federal government to discriminate on the basis of race, we still needed Title 7 to do that in the private marketplace. And the same thing is true here.
States obviously are the only ones who can issue marriage licenses, and so the court’s ruling will declare that policy constitutional or unconstitutional, but it won’t directly speak to what happens in the private sector, whether it be housing or employment or anything else.
What are the implications if the court determines that LGBT Americans are a protected class?
I think it may have very powerful implications. Legally, if they say that there is some heightened scrutiny that must apply, then we are dealing with discrimination against the LGBT community; it might mean that whenever the federal government or the state government discriminates in employment or housing or anything else against those folks, that those would be presumptively illegal. That is one thing.
Then there is the non-legal question: If the court really does strike down these marriage prohibitions, it is going to be a landmark decision. Something that is probably the only decision in our lifetime that our children will know by name. It is going to be that big of a deal. I think the symbolism of that will have powerful radiating effects, apart from the strict legal impact of the decision in terms of bringing the LGBT community into a world in which they don’t face the horrible discrimination that they faced since the nation has been with us.
If the court rules against same-sex marriage, what does it mean for existing same-sex marriages?
I suspect the court wouldn’t get into that if they decide to affirm the court of appeals decision saying marriage prohibitions are OK. I think they would leave that for the lower courts to decide. But I think one of the solicitor general’s most powerful arguments at the oral argument was saying, “Look, you are talking about families and children; if you are really concerned about that, if you adopt what these states are saying, defending these bans will put you in legal limbo. All of these marriages that have already happened.”
I suspect that is going to give the court a lot of pause. We have seen tens of thousands of these marriages, and lo and behold, the sky hasn’t fallen, and the idea that states now could revoke the very licenses that they now issued is troubling to anyone on any side of the issue.
Isn’t it still significant if the court does that compromise?
That is exactly right. That is why I think it is unlikely as an option. The chief justice referred to this at the oral argument. He said, “If that is the rule, then we are effectively creating a national rule for same-sex marriage.” Some people may not be able to afford to travel to a state that recognizes them, so it may not be perfectly mirroring a rule of same-sex marriage, but it would be close. That is why what looks like a compromise option turns out to not be much of a compromise.