Constitution Check: Might the Supreme Court take a pass on same-sex marriage now?

Lyle Denniston, the National Constitution Center’s literacy adviser, looks that an interesting argument posed about next week’s same-sex arguments at the Supreme Court: that the cases shouldn’t be heard at the moment.

THE STATEMENT AT ISSUE:

“Given that rewriting the states’ definition of marriage would have profound impacts on domestic relations in the affected states, these cases belong in the state courts that have expertise in the relevant area of family law. Likewise, the states’ option to remedy any constitutional violation by exiting the marriage field – as opposed to opening the state’s marriage laws – further argues for having state courts hear marriage-rights cases….If this type of litigation had to begin in state court, each state could proceed in its own courts before the final review, if any, in the Supreme Court….That procedure would prove markedly more consistent with the Eleventh Amendment and our federal structure than allowing these suits to begin in the lower federal courts.”

– Argument made by a conservative legal advocacy group, Eagle Forum Education and Legal Defense Fund, in a legal brief filed in the same-sex marriage cases that come up for hearing in the Supreme Court on April 28.

WE CHECKED THE CONSTITUTION, AND…

Ever since the 11th Amendment was added to the Constitution in 1795, in reaction to a Supreme Court decision (Chisholm v. Georgia) that Congress thought gave federal courts too much authority over state governments, America has struggled to define the ongoing limits of the right to sue state governments in the national courts. In theory, no federal court is ever supposed to move ahead to decide a case until it is satisfied that it had jurisdiction under Article III, setting up the national courts, and that is an exceedingly complex question when the target of the case is a state government.

Indeed, in the opening pages of any lawsuit filed in federal court, the basis of the court’s jurisdiction is supposed to be recited. That may go uncontested as the case moves along, but it is an issue that can arise at any time. If it should turn out that the court did lack the authority to decide the case, the case ends immediately.

In the four same-sex marriage cases that the Supreme Court will hear next Tuesday, each of the appeals claims that the case was properly pursued in a federal court, and that this jurisdiction continues before the Supreme Court. When the Cincinnati-based U.S. Court of Appeals for the Sixth Circuit upheld the marriage bans for four states within that geographic region, its lengthy opinion said not a word about the right of the same-sex couples to have pursued their challenges in federal courts. It certainly did not order the cases refiled in state courts, but did conclude that the issue actually should be decided not in the courts at all, but by the state legislatures or by a state’s voters. That is the ruling the Supreme Court is now set to review.

In one legal brief filed as the cases unfolded in the Supreme Court, the Eagle Forum Education and Legal Defense Fund, a conservative legal advocacy group based in St. Louis, stepped forward to boldly ask the Supreme Court to dismiss the four cases, to allow them to be refiled only in each state’s own courts.   It did not argue, as the Sixth Circuit Court had, that the marriage question was one of state lawmakers or voters, but rather for the state courts in their traditional role of managing family law.

The Eagle Forum brief provides a broadly researched inquiry into the limited nature of jurisdiction in American federal courts, seeking to counter the rather common assumption that if someone in America has a legal grievance, especially one claiming a violation of someone’s constitutional rights, the federal courts are fully open to hear and decide that complaint.

The document is focused primarily upon the specific federal laws that define the scope of federal courts’ jurisdiction, especially as it applies to the lower federal courts – those conducting trials and initial appeals. It also discusses jurisdiction under Article III, but does not seek to settle just what that may add to the authority of the Supreme Court itself to take up the marriage question in the future, if it should reach the Justices from a case that had begun in state courts.

The objective of that filing is simply to put an end to these cases as they arose in the lower federal courts, and then leave it to same-sex couples to start all over again, or to continue to pursue existing lawsuits, in state courts.   Because state courts have the same authority as federal courts to hear and decide issues under the national Constitution, there is no doubt that a state court could resolve such a claim by couples challenging a state’s ban on marriage or on recognition of existing marriages.

If the Supreme Court were to agree with the Eagle Forum’s argument, there is no doubt that the constitutional campaign to win same-sex marriage rights would go right on in state courts, and the reality is that it probably would unfold just as quickly, or nearly so, as it has in the federal courts over the last 22 months.   One or more decisions would then emerge, state by state, thus teeing up appeals that would then go directly to the Supreme Court for review. Although the Eagle Forum brief sought to leave unresolved the question of the Supreme Court’s authority to hear an appeal from a state court, there seems little doubt that it would have that power.

A state where the issue could develop very rapidly, it appears, is Alabama. That state’s Supreme Court, in a recent ruling based directly on the national Constitution, has declared that there is no guarantee of marriage equality for same-sex couples. That ruling came in something of an advisory opinion, in a case not involving same-sex couples as the parties.   But one or more same-sex couples could quickly ask the state Supreme Court to reconsider that ruling, or start a new case in an Alabama trial court, to test the constitutional conclusion.

It might even be less than a year before the same constitutional question now before the Supreme Court could return in the state court format. And, because there surely would be a split in outcomes among state courts at that point, the Justices undoubtedly would take it on again.

There is thus a kind of inevitability that the Supreme Court is going to have to decide the issue, sooner or later. Next week’s hearing may indicate whether any Justice has any interest in putting the issue off for a while.