The pending U.S. Supreme Court case of Deboer v. Snyder and its related cases, examining the legality and enforceability of same-sex marriage, present legal and policy issues of major importance to the nation. Here is Western Michigan University Cooley Law Professor Gerald A. Fisher’s brief take on some of the key issues.
The cases present issues under two key clauses of the 14th Amendment: the Due Process Clause and the Equal Protection Clause. Arguments will address whether same-sex marriage is a “fundamental right” that triggers special protections under the Constitution. The decision may address whether the plaintiffs or the states have the burden of proof, and the extent of that burden in terms of arguing the constitutionality of the regulations in question. Also of equal importance, the cases have the potential of raising questions touching on the fundamental structure of our country by determining whether the individual states, or the federal government itself, have the jurisdiction to define marriage rights and privileges.
The most likely outcome in the case is a Justice Kennedy-written opinion expressing that there is no rational reason for a state to prohibit same sex-marriage. However, there is a long-shot outcome, consistent with the U.S. Supreme Court’s decision in the Defense of Marriage Act case, United States v. Windsor, written in 2013 by Justice Kennedy, that the definition of marriage is a matter appropriately left to the states.
WMU-Cooley Professor Gerald Fisher teaches Constitutional Law, Property, Secured Transactions, Zoning and Land Use Law, and State and Local Government Law. Professor Fisher has appeared on 21 occasions in cases presented to the Michigan Supreme Court. He was the recipient of the Roberts P. Hudson Award from the State Bar of Michigan in 1978, named a Best Lawyer in America in 2007, Recipient of the Cooley Law Review Michigan Supreme Court Distinguished Brief Award in 2001, and named a Lawyer of the Year in Michigan (one of ten) in 2001 by Michigan Lawyers Weekly.