How Will SCOTUS Address Gay Marriage 'Grandfathering Problem'?

When the California Supreme Court faced this question after Proposition 8 overruled the court's discovery of a right to gay marriage, the court concluded that the ballot initiative did not apply retroactively because it was not clear whether voters intended such application. If the United States Supreme Court chooses to definitively address the issue as well, the justices will have to find a different legal rationale; the California rationale is inapplicable here. That brings us back to the need for a principled approach.

There is no requirement that the Supreme Court be principled, but an arbitrary fiat mandating that gay marriages be grandfathered would create resentment and maybe resistance in states that, otherwise, have just been told the Constitution does not require them to license same-sex marriages. Such states will not be pleased to find themselves stuck with the result of what turned out to be faulty constitutional reasoning by the lower courts. Consider that Alabama has already demonstrated its willingness to resist a federal court order legalizing gay marriage.

Fortunately, the grandfathering question can be answered in a way that flows naturally from a compromise decision by the Court. Recall that under the most likely compromise, a state, say Idaho, would be obligated to recognize same-sex marriages lawfully performed out of state. If that obligation is simply extended to include the same-sex marriages lawfully performed in Idaho -- that is, the marriages that followed a federal court order striking down Idaho's traditional definition of marriage -- the grandfathering problem is solved. Gay couples married in Idaho or any other state remain married.

Principles of fairness suggest that gay couples be treated the same in Idaho whether their marriages were performed in-state or out-of-state, and so does the Constitution. Though most commonly applied to laws favoring state residents, the Privileges and Immunities Clause of Article IV stands for the proposition that people in and out of state should be treated equally with regard to fundamental rights.

Note that extending recognition to preexisting in-state marriages would impose very little additional burden on states that choose not to license gay marriages going forward. Under a compromise decision, Idaho will have to recognize same-sex marriages lawfully performed in a long list of states. The proposed approach to the grandfathering problem merely adds one more state to the list. The evenhandedness of this approach should make it easier for critics of gay marriage to accept.

If Justice Kennedy is hellbent on discovering a constitutional right to gay marriage, there will be no grandfathering problem to address. If, instead, Kennedy is looking for a compromise approach that neither side will celebrate but both sides can take some satisfaction from, finding a right to recognition and extending it to take care of the grandfathering problem is his best choice.