How Will SCOTUS Address Gay Marriage 'Grandfathering Problem'?

When the Supreme Court tackles the issue of gay marriage today, one clue to how the justices intend to rule will be how much attention they pay to a thorny problem that will arise if the Court stops short of declaring a constitutional right to same-sex marriage.

The problem, which has gotten surprisingly little attention, is the fate of the thousands of gay marriages licensed in a variety of states where same-sex marriage bans were struck down by the lower federal courts. Those court orders will be superseded -- and the marriages potentially invalidated -- if the justices conclude that the Constitution does not require states to license gay marriages.

It is not just proponents of gay marriage who should be worried about this problem. A way to grandfather preexisting gay marriages must be found for there to be a chance of getting five votes against a constitutional right to same-sex marriage. Justice Kennedy is unlikely to sign on to any decision that tears existing marriages asunder.

Fortunately, there is a principled approach that leaves those marriages intact.

There is little chance that Justice Kennedy will leave gay couples completely empty-handed, so the grandfathering problem is most likely to arise from a compromise decision in which the Court says yes to only the second of the two questions before it. The questions ask whether the Fourteenth Amendment requires a state to 1) license same-sex marriages, or 2) recognize such marriages if they have been licensed out-of-state. A compromise decision would presumably find that while there is no constitutional right to same-sex marriage per se, the Constitution does requires that out-of-state gay marriages be recognized.

Such a decision may well appeal to Justice Kennedy, who has been known to look for ways to split the baby. If informed by the Constitution's requirement that states accord "full faith and credit" to the acts of other states, a compromise decision would be grounded in principles of federalism, which Kennedy supports as much as he sympathizes with gay rights. In fact, Kennedy's 2013 opinion striking down a section of the federal Defense of Marriage Act was based, in part, on federalism concerns. If Justice Kennedy is looking for a compromise decision that will appear restrained rather than activist and limit the precedential spillover, finding that the Constitution requires recognition but not licensing is a sound approach.

However, that approach does not in and of itself address the question of whether existing gay marriages would be grandfathered.

Without more, the question would be initially left up to the states but ultimately fought out in the courts. Though there has been little or no analysis of this issue to date, good legal arguments can be made on either side. Facing essentially the same question, Michigan Governor Rick Snyder opted to grandfather existing same-sex marriages, while Arkansas took the opposite approach. What is certain is that gay couples whose marriages resulted from federal court orders will find themselves in legal limbo if the Supreme Court does not definitively answer the grandfathering question.