I’ve now written a short essay on that question, which is forthcoming in the NYU Journal of Law and Liberty’s inaugural Supreme Court Review-Preview. Here is the introduction:
Last June, the headlines said that the Supreme Court’s decision in United States v. Windsor struck down the Defense of Marriage Act. But that is only half true. The Defense of Marriage Act had two important provisions. Section Three defined “marriage” for purposes of federal law as being limited to the union of one man and one woman. It was invalidated in Windsor. But the Act’s other section, Section Two, says that states are not required to recognize one another’s same-sex marriages. Section Two was not invalidated. But it may be soon.
Indeed, the validity of Section Two is a natural question after Windsor. Putting it more generally, the question is whether states are constitutionally required to recognize same-sex marriages that were celebrated elsewhere.
One federal court has already answered “yes,” relying on Windsor to hold that interstate recognition is constitutionally required: In Obergefell v. Kasich, a federal district judge granted a temporary restraining order requiring the state of Ohio to recognize a marriage between two Ohio men who had briefly traveled to Maryland to marry. (The recognition was for the sad occasion of issuing a death certificate.) And there is more to come. It seems likely that the court will issue a final decision soon enough, and another plaintiff has already been added to the Obergefell suit. Many other courts will soon confront the same question.
Windsor does not address this question directly. But the decision contains two different strands of reasoning, one of which supports interstate recognition, and one of which does not. It is not obvious which of these strands is supposed to control. I offer one theory for reconciling them, under which many same-sex couples would have a right to have their marriages recognized, but which argues that the district court’s order in Obergefell nonetheless went too far.
Comments are welcome.