JURIST Guest Columnist Mary Margaret Penrose, of Texas A&M University School of Law, discusses the disarrayed nature of same-sex marriage law in the US today …

Molly Ivins, the renowned Texas satirist, once remarked, “The thing about democracy, beloveds, is that it is not neat, orderly or quiet. It requires a certain relish for confusion.” Texas and Alabama, it appears from recent judicial events, are breathing full life into this quote.

On April 28, 2015, when the US Supreme Court hears oral argument in four pending same-sex marriage cases from the US Court of Appeals for the Sixth Circuit, the question of whether same-sex marriage can be banned by individual states, or recognition withheld, is likely one step closer to national resolution. Barring some unforeseen occurrence, the Supreme Court’s opinion in these cases should be announced in June. Until then, however, Texas and Alabama are demonstrating a “certain relish for confusion.”

While many see this issue as a matter of states’ rights, and increasingly a matter of religious liberty for those opposing same-sex marriages, the constitutional validity of a state’s laws have been subject to federal judicial scrutiny for at least two centuries. As Chief Justice Marshall reminded in the landmark decision Marbury v. Madison, “It is emphatically the province and the duty of the judicial department to say what the law is.” While federal judicial review may not be a popular position, it is undoubtedly a sound constitutional principle.

So, while democracy necessarily includes elections and legislative actions, our constitutional democracy has long relied upon federal courts to ensure that any law, state or federal, that is properly challenged and found contrary to the federal Constitution is declared void. The desire of a state to avoid such proclamations is not new. Rather, this is an age old battle that dates back to March 20, 1816 when the Supreme Court decided Martin v. Hunter’s Lessee, a case underscoring the US Supreme Court as the final arbiter of the constitutionality of state laws conflicting with the federal Constitution. Martin’s viability remains as sound today as it was when in was delivered nearly two hundred years ago, and resistance to Martin’s mandate is as vigorous today, particularly in Texas and Alabama, as it was in 1816.

The Texas same-sex marriage ban passed overwhelmingly in 2005 has moved from a point of legal uncertainty to a place of legal chaos. Texas remains one of 13 states that continue to ban same-sex marriage, but recent events keep propelling Texas and her marriage ban into the national spotlight.

In late February, two Texas state judges—apparently not satisfied with the pace of justice before the federal courts and the Texas Supreme Court—ruled the Texas marriage ban unconstitutionally violates equal protection and substantive due process. Never mind that one was a probate judge who, unlike our Alabama counterparts, usually plays no role in assessing the constitutionality of laws or issuance of marriage licenses and another was a state district judge who ruled so quickly, including suspending the requisite 72-hour waiting period for Texas marriages, that Texas now has one (possibly) legally married same-sex couple.

The Texas Attorney General, representing many ordinary Texans, immediately filed with the Texas Supreme Court a motion to stay [PDF] the state district judge’s ruling to preclude the issuance of any other same-sex marriage licenses and to void the lone Lone Star Marriage. So now it appears the Texas Supreme Court has yet one more case challenging, reexamining and eagerly seeking some local resolution to the question of whether Texas citizens retain the right to vote that same-sex couples may not marry or import their same-sex marriage to Texas or whether that power is delimited by the US Constitution. This question, also pending before the federal US Court of Appeals for the Fifth Circuit in New Orleans, was brought about by Texas judges, both state and federal, ruling that the Texas same-sex marriage ban was unconstitutional.

In January, Texas faced legal uncertainty regarding its same-sex marriage laws, but with the addition of another two Texas state judges ruling that the democratically passed same-sex marriage ban was unconstitutional, this legal uncertainty has advanced into a state of legal chaos. The Texas Attorney General sought mandamus [PDF] from the Texas Supreme Court “to avoid the legal chaos that would follow if the [state] trial court’s ruling is mistakenly interpreted as authorization for the creation of or recognition of same-sex marriages in Travis County or throughout the State. The actions of the plaintiffs, as well as events in Utah, Michigan and Alabama demonstrate the gravity, reach and imminence of this harm absent mandamus relief.”

Texas officials have not limited their defense of the same-sex marriage to the courts. US Senator Ted Cruz supports a federal bill being presented to the 114th Congress, the State Marriage Defense Act of 2015, that would amend the US Code to permanently define the terms “marriage” and “spouse” for all federal purposes as determined by state law.

While this seems appealing to those supporting states’ rights, the difficulty lies in the fact that all state laws are measured and bound by the Supremacy Clause of the US Constitution. As Justice Marshall noted in McCulloch v. Maryland, the great principle that “the Constitution and the laws made in pursuance thereof are supreme; that they control the Constitution and laws of the respective States, and cannot be controlled by them” is nearly axiomatic. In other words, if the state definition of “marriage” or “spouse” is found to be unconstitutional, then a federal statute certainly cannot make federal laws and benefits dependent on an unconstitutional state law.

The opponents of same-sex marriage seem as busy and creative as the proponents of same-sex marriage. So while the Texas Attorney General speaks of the chaotic state of Texas law, one wonders why the opponents of same-sex marriage are engaging just as actively and aggressively as those who believe that same-sex marriage is a constitutional right and should be made available now for all. One marriage may be symbolic or it may represent a serious chink in the armor.

Texas is not alone in fighting aggressively and understandably to defend its state prerogative to define marriage. Alabama has been a judicial battlefield with the federal courts and the Alabama Supreme Court waging separate fights to control the state’s probate officials responsible for issuing marriage licenses, from the federal court decision [PDF] striking down Alabama’s same-sex marriage ban as unconstitutional, to the Chief Justice of the Alabama Supreme Court’s letter admonishment to probate officials [PDF] to refrain from issuing same-sex marriage licenses or face state discipline, to the federal judge ordering probate officials to issue same-sex marriage licenses, to finally the Alabama Supreme Court re-entering the fray by issuing a lengthy judicial opinion this week upholding (despite a pending federal appeal) Alabama’s same-sex marriage laws.

Legal chaos reigns in Alabama.

The issue of same-sex marriage is undoubtedly divisive, with some drawing analogies to the interracial marriage bans of a bygone era while others raise support from Biblical passages and the truism that marriage remains the quintessential state right. In truth, both sides raise arguments they believe are filled with logic and legal support, and both sides zealously condemn the other as intolerant, bigoted or perverted. This social divide has become the civil rights issue of the current generation, and its resolution is best secured for both sides before the US Supreme Court.

Since the early days of the republic, Marshall’s establishment of federal judicial review to decide constitutional issues remains the guiding star in our constitutional democracy. From Roe v. Wade to Bush v. Gore and every controversial challenge both before and since, our country has consistently put its faith in the judicial department and the US Supreme Court. The Supreme Court is not right because it always reaches the correct decision. Rather, the Supreme Court is right, constitutionally speaking, because on matters it decides, the Supreme Court has the last word.

While opponents and proponents of this culture war continue to rhetorically argue, vilify and predict what will ultimately become of the issue of same-sex marriage, I find solace in the fact that we should all soon know. April 28th is mere weeks away, and to those who cannot, or will not, wait, my sense is that these individuals and groups, regardless of which side of the debate they represent, are only adding to the legal chaos that surrounds this extremely complex issue. Much like Justice Clarence Thomas wrote a mere two weeks ago in his dissent from the Supreme Court’s recent refusal to issue a stay [PDF] in Alabama while states, including Alabama and Texas, await the final, anticipated ruling from the Supreme Court later this summer:

When courts declare state laws unconstitutional and enjoin state officials from enforcing them, our ordinary practice is to suspend those injunctions from taking effect pending appellate review. . . .

In this case, the court refuses even to grant a temporary stay when it will resolve the issue at hand in several months.

I respectfully dissent from the denial of this application. I would have shown the people of Alabama the respect they deserve and preserved the status quo while the court resolves this important constitutional question.

While Thomas was speaking to his colleagues on the US Supreme Court, his words ring true to all litigants and legislators seeking to preempt resolution by the Supreme Court. Texas and Alabama are both in a state of legal chaos. This chaotic state is not due to the fact that the Supreme Court has not yet ruled on the issue. Rather, Texas is in a state of legal chaos because those seeking relief from the Supreme Court’s ruling refuse to wait for the Court to rule. Alabama, in contrast, is in a state of legal chaos because its own Supreme Court has decided to implicitly overcome the refusal of the US Supreme Court to stay same-sex marriage in Alabama by issuing a ruling that these marriages, ruled unconstitutional in the federal courts and currently awaiting federal appellate resolution, are constitutional—at least in the eyes of the Alabama State Supreme Court.

None of these legal opinions, in either Texas or Alabama, will control this issue much longer. Instead, these legal opinions only serve to divide us and create confusion, if not chaos, over states’ rights and the Supremacy Clause. In Texas, the litigants are demonstrating activism by seeking alternate judicial avenues to circumvent a pending Supreme Court opinion. In Alabama, the courts are engaging in activism by creating dueling judicial opinions that, ultimately, the Alabama Supreme Court justices appreciate must yield to the US Supreme Court’s final decision.

Only the US Court of Appeals for the Eighth Circuit, that granted a stay [PDF] in the recently-issued Nebraska federal court opinion finding same-sex marriage unconstitutional, appears to understand the role of the judiciary in resolving volatile and passionate constitutional issues. Much like Justice Thomas’s plea in his recent dissent from the Alabama stay request, the Eighth Circuit understands the value of pausing and maintaining the status quo while we await the proper Supreme Court resolution of this tricky issue.

Thomas is constitutionally correct that all litigants should respect the status quo until such time as the Supreme Court rules on this important constitutional question. I would argue his opinion extends to judicial officers as well. The Alabama Supreme Court has not solved any issue in Alabama, just as the lone couple married in Texas has not advanced any rights beyond their own. The issue is pending, currently pending, before the US Supreme Court. We should all take a deep breath and wait. Let the briefs be filed. Let the arguments take place. Let the justices decide, in Marbury terms, “what the law is.”

But, as Texans tend to exhibit an independent streak, and Alabama proves itself indefatigable, we must once again return to the wisdom of Molly Ivins: democracy might not be neat, orderly or quiet. I guess we need to relish the confusion—at least until late April or early June.

Mary Margaret Penrose is Professor of Law at Texas A&M University School of Law in Fort Worth, Texas. She earned her J.D. from Pepperdine University School of Law and an LL.M from the University of Notre Dame.

Suggested citation: Mary Margaret Penrose, Same-Sex Marriage: From Legal Uncertainty to Legal Chaos, JURIST – Academic Commentary, Mar. 9, 2015, http://jurist.org/academic/2015/03/marymargaret-penrose-same-sex-marriage.