MIchigan Law grad Steve Sanders, now an Indiana University Law prof, addresses the question of what the next big issue will be in the wake of today's same-sex marriage decisions, Hollingsworth v. Perry and U.S. v. Windsor. From his SCOTUSblog post:
On this blog and in a recent article for the Michigan Law Review, I have argued that a person who legally marries in her home state, then pulls up stakes and moves to another state, acquires a significant liberty interest under the 14th Amendment’s Due Process Clause in the ongoing existence of her marriage. This liberty interest creates a right of marriage recognition that is conceptually and doctrinally distinguishable from any constitutional “right to marry” in the first instance. It is a neutral principle, grounded in core Due Process Clause values: protection of normative expectations about marital and family privacy (if a state can’t take away your child without due process, how can it take away your spouse?); respect for established legal and social practices (state-to-state marriage recognition is a longstanding default rule); and rejection of the idea that a state can unilaterally sever a legal family relationship without important, proven justifications.
Did the Court today provide any support for my argument? To be sure, Justice Kennedy’s Windsor opinion is solicitous toward the prerogative of states to define marriage for themselves. But his analysis is entirely in the context of vertical federalism: federal law, the Court said, may not “injure” same-sex couples whom a state has seen fit to “protect” with the status of marriage. The key here, I think, is that many of the Court’s rationales for condemning DOMA also implicate horizontal federalism: the obligations states owe one another as coequal sovereigns.
