Last March, a federal district judge in Detroit held that the Constitution’s promise that no one shall be denied “the equal protection of the laws” extends to same-sex couples who wish to marry. One day later, officials in Michigan married approximately 300 same-sex couples before the district court’s decision was stayed by the United States Court of Appeals for the Sixth Circuit. Last week, a divided panel of the Sixth Circuit reversed the district court’s decision outright, becoming the first federal appeals court to rule against marriage equality since the Supreme Court struck down the anti-gay Defense of Marriage Act in 2013.
On Friday, Michigan Attorney General Bill Schuette (R) filed a brief for another federal district judge arguing that the 300 same-sex couples wedded before the Sixth Circuit’s stay have effectively been unmarried by the Sixth Circuit panel’s decision. “[B]ecause the marriages rested solely on the district court’s erroneous decision, which has now been reversed,” Schuette claims, “it is as if the marriages never existed.”
To his credit, Schuette does not ask the judge to hold that the marriages are invalid immediately — rather, he asks that the court to wait to decide this issue until after the Supreme Court weighs in on the case. As a matter of law, however, Schuette is correct that the legal basis for the 300 marriages is a district judge’s decision that has now been reversed. Indeed, should the Supreme Court ultimately rule against marriage equality, the immediate result is likely to be that tens of thousands of marriages in states across the country will be retroactively invalidated.
In October, the Supreme Court decided not to hear three federal appeals courts’ decisions that sided with marriage equality. The practical effect of this decision not to hear these cases was that it allowed the lower court decisions to take effect in many states, and same-sex couples began marrying not long thereafter. At the time of the Supreme Court’s decision not to second-guess these lower courts, we wrote that “the fact that marriages are likely to begin very shortly in the states currently subject to court orders will make it very difficult for the Supreme Court to reverse course — and retroactively invalidate those marriages — in a subsequent opinion.” It is one thing for the justices to deny a right that has historically been denied to a class of people; it is another thing altogether to allow them to enjoy that right only to snatch it away months later.
In light of recent events, however, it is no longer clear that the justices are unwilling to yank rights away from people who previously enjoyed them. Last week, the Supreme Court announced that it would hear King v. Burwell, a lawsuit seeking to defund much of the Affordable Care Act that could collapse the individual health insurance market in many states. The plaintiffs’ legal arguments in King are extraordinarily weak, and the Court’s normal procedures counseled against agreeing to hear this case right away. Nevertheless, the lead attorney for the plaintiffs predicted that the five Republicans on the Supreme Court would take the case because they aren’t “going to give much of a damn about what a bunch of Obama appointees” on a lower court think. This attorney’s suggestion that the justices’ decision could be predicted by their political party now appears to be accurate.
Should the justices accept the plaintiffs’ legal arguments in King, they will strip health insurance from millions of Americans and will likely endanger the care of thousands of Americans who need insurance to pay for essential treatments. The justices’ surprising decision to hear this case in the first place is an ominous sign that there may be five votes planning to topple health reform.
On the marriage issue, by contrast, it remains likely that there are five justices prepared to side with marriage equality. Justice Anthony Kennedy, who voted to repeal the entire Affordable Care Act in 2012, also has a fairly consistent pro-gay record.
But it is no longer clear that the justices will be dissuaded from ruling against marriage equality merely because doing so would strip many Americans of rights that they already enjoy and have already exercised.