JAMES OBERGEFELL, ET AL., Petitioners v. RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, ET AL
Interviewer(s): Anthony M. Kennedy, Samuel A. Alito, Jr., Stephen G. Breyer, Elena Kagan, John G. Roberts, Jr., Ruth Bader Ginsburg, Antonin Scalia, Sonia Sotomayor
Interviewee(s): Joseph F. Whalen

John G. Roberts, Jr.: We'll now hear our argument on the second question presented in this case. Mr. Hallward-Driemeier.

Samuel A. Alito, Jr.: I was somewhat surprised by the arguments you made in your brief because they are largely a repetition of the arguments that we just heard with respect to Question 1. I thought the point of Question 2 was whether there would be a -- an obligation to recognize a same-sex marriage entered into in another State where that is lawful even if the State itself, constitutionally, does not recognize same-sex marriage. I thought that's the question in Question 2.

Is -- am I wrong?

Antonin Scalia: Even -- even if that marriage is -- is not lawful under -- under the receiving State's law; right?

Antonin Scalia: Is that right? No matter -- I mean, suppose -- well, let's say someone gets married in a -- in a country that permits polygamy. Does a State have to acknowledge that marriage?

Antonin Scalia: Okay.

So --

Antonin Scalia: -- what would the justification be? That it's contrary to the State's public policy, I assume; right?

Antonin Scalia: Well, it would be the same argument.

We don't have such an institution.

Our marriage in this State, which we constitutionally can have because the second question assumes that the first question comes out the way the United States does not want it to come out, the State says we only have the institution of heterosexual marriage.

We don't have the institution of same-sex marriage.

Antonin Scalia: Well, you're saying that, but the State doesn't.

The State says the only institution we have is heterosexual marriage.

Sonia Sotomayor: Now, could I -- could I -- because I don't -- if you want to finish answering Justice Scalia's --

Samuel A. Alito, Jr.: What if it's not a plural relationship? What if one State says that individuals can marry at the age of puberty? So a 12-year-old female can marry.

Would a State -- would another State be obligated to recognize that marriage?

Sonia Sotomayor: Sir, how about the co-sanguinity situation? Virtually all states would recognize cousins through marriage getting married, but there's at least one State that doesn't; right?

Sonia Sotomayor: Are you saying that that State is --

Sonia Sotomayor: This is not incest. They're not biologically tied.

Anthony M. Kennedy: But Justice Alito's question points out, the assumption of his hypothetical is -- and -- and of the way these cases are presented, is that the State does have a sufficient interest so that you need not allow the marriages in those -- in that State. So there is a sufficient interest, under our arguendo assumption here, to -- to say that this is not a fundamental right.

But then suddenly, if you're out of State it's different.

Why -- why should the State have to yield?

Antonin Scalia: Well, I think -- I think what Kentucky is saying is that the long-term effects of having same-sex couples in Kentucky will be, which you -- you didn't agree with, but what -- what counsel for Respondent argued in the prior case, will be a -- a reduction in -- in -- in heterosexual marriages and a -- a reduction in the number of children born to those marriages.

I mean, that --

Antonin Scalia: But we will not have rejected it if we come out the way this question presented assumes we have come out.

Antonin Scalia: Mainly, saying that it's okay for a State not to permit same-sex marriage.

Ruth Bader Ginsburg: May we clear this one thing.

If the Petitioner prevails in the first case, then the argument is moot; right?

Ruth Bader Ginsburg: So you are supposing a situation where the Plaintiffs do not prevail, and so a State can retain its ban on same-sex marriage. The question is has -- does it have to recognize marriage from out of State? Would it make any difference if the couple came from the State where there is a ban on same-sex marriage, goes to a neighboring State that allows it, and then comes right back home again?

John G. Roberts, Jr.: Yes.

But, again, I think you're avoiding the presumption on which we're starting, on the assumption, which is that the State's policy for same -- supporting same-sex marriage is sufficiently strong, that they are -- they can, as a matter of public policy, prohibit that in their own State.

And yet you're saying it's somehow so much weaker when you're talking about marriages from other States.

John G. Roberts, Jr.: It certainly --

John G. Roberts, Jr.: It certainly undermines the State interest that we would, assuming arguendo, have recognized in the first case, to say that they must welcome in their borders people who have been married elsewhere.

It'd simply be a matter of time until they would, in effect, be recognizing that within the State.

John G. Roberts, Jr.: Because we live in a very mobile society, and people move all the time.

John G. Roberts, Jr.: In other words, it would kind of -- it -- one State would basically set the policy for the entire nation.

John G. Roberts, Jr.: Wait.

I -- I've lost you there.

What -- what lines are you talking about?

Sonia Sotomayor: I thought your --

Sonia Sotomayor: -- your argument --

Sonia Sotomayor: -- would be different. I thought that the States had never categorically passed a law declaring that a particular kind of marriage was against public policy.

Sonia Sotomayor: No one of the four States had ever done that?

Sonia Sotomayor: Until the DOMA issue came up.

Samuel A. Alito, Jr.: You're saying that --

Sonia Sotomayor: Well, they --

Samuel A. Alito, Jr.: You're saying that the laws in some States, the States that you're referring to that recognize only opposite-sex marriage are pretextual?

Samuel A. Alito, Jr.: Well --

Samuel A. Alito, Jr.: -- other than the distinction -- we have the distinction between same-sex marriage and opposite-sex marriage.

What is the next most dramatic variation that exists in the marriage laws of the States?

Samuel A. Alito, Jr.: At the present time, what is --

Samuel A. Alito, Jr.: -- most -- the next most dramatic difference?

Samuel A. Alito, Jr.: Well -- well, I had asked a simple question.

At the present time, what is the next most dramatic variation in the marriage laws of the States?

Samuel A. Alito, Jr.: And what is the -- what -- what's the range?

Samuel A. Alito, Jr.: Well, I thought you answered me earlier that a State could refuse to recognize a marriage in -- contracted in another State where the minimum age was puberty.

Ruth Bader Ginsburg: It would have to be shown, I think, the presumption would be in such a State that someone age 13 can't consent.

John G. Roberts, Jr.: I think your -- your argument is pretty much the exact opposite of the argument of the Petitioners in the prior case.

The argument that was presented against them is, you can't do this, we've never done this before, recognized same-sex marriage. And now you're saying, well, they can't not recognize same-sex marriages because they've never not recognized marriages before that were lawfully performed in other States.

John G. Roberts, Jr.: You've got to decide one or the other if you win.

John G. Roberts, Jr.: And maybe --

John G. Roberts, Jr.: -- I'm just repeating myself, but we only get to the second question if you've lost on that point already, if we've said States do not have to recognize same-sex marriage as a marriage. So assuming you've lost on that, I don't see how your argument gets -- you can't say that they are not treating the marriage as a marriage when they don't have to do that in the first place.

Antonin Scalia: You're rearguing Question 1 now? Is that -- is that what you're doing?

Antonin Scalia: I thought you were.

Antonin Scalia: It would have been -- it would have been the argument made with respect to the first question; namely, that the existence of same-sex marriages erodes, erodes the -- the feeling of society regarding heterosexual marriages.

Ruth Bader Ginsburg: The State's rationale is we -- we treat outsiders the same way we treat insiders.

John G. Roberts, Jr.: Thank you, counsel. Mr. Whalen.

Joseph F. Whalen: Mr. Chief Justice, and may it please the Court: The Fourteenth Amendment does not require States with traditional marriage laws to recognize marriages from other States between two persons of the same sex.

Antonin Scalia: What about Article IV? I'm so glad to be able to quote a portion of the Constitution that actually seems to be relevant.

"Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State." Now, why doesn't that apply?

Joseph F. Whalen: Your Honor, this Court's cases have made clear that the Court draws a distinction between judgments between States and the laws of each State.

And the reason in part that the Court's decisions have said that is that otherwise, each State would be able to essentially legislate for every other State.

Antonin Scalia: Public acts? It would include the act of marrying people, I assume.

Joseph F. Whalen: My understanding of this Court's decisions as the reference in the Constitution to public acts is that each State's laws.

Antonin Scalia: So there -- there's nothing in the Constitution that requires a State to acknowledge even those marriages in other States that -- that are the same.

Joseph F. Whalen: That's essentially correct, Your Honor.

Antonin Scalia: Really?

Joseph F. Whalen: Under this Court's decisions, that's -- that's essentially right.

There has been under the jurisprudence with regard to Allstate Insurance and Alaska Packers and so forth that there's -- there's a minimal due process requirement to decline to apply another State's substantive law.

Antonin Scalia: We -- we can say the only marriages we acknowledge in -- in New York are marriages concluded in New York; is that possible?

Joseph F. Whalen: I'm sorry? I don't --

Antonin Scalia: New York can say the only marriages we acknowledge in New York are those marriages that have been made under the laws of New York.

Joseph F. Whalen: Yes, Your Honor.

Antonin Scalia: Really?

Joseph F. Whalen: If I'm understanding your -- if I'm understanding your question correctly.

John G. Roberts, Jr.: What case is that? What case would you cite to support that proposition?

Joseph F. Whalen: I'm not sure if I understood the question correctly, Your Honor.

Stephen G. Breyer: He said -- I mean, I already have several cases to read.

I might as well get another one. (Laughter.)

Stephen G. Breyer: What -- what is the case that holds that the State of New York has the right to recognize only marriages made in New York? And when -- if you marry in Virginia, New York has the constitutional right to say, we treat you as if you weren't married, whoever you are.

Joseph F. Whalen: I did -- I did misunderstand the question.

My understanding of the question was whether New York could decline to recognize an out-of-state marriage that did not comport with New York's law.

Antonin Scalia: That's not what I said.

Ruth Bader Ginsburg: Because it is clear that if the law of the two States is the same, that was used against Fedder, the State cannot say we won't apply the other State's law, even though it's the same as our own.

Joseph F. Whalen: Even though it's the same as ours?

Ruth Bader Ginsburg: Yes.

Stephen G. Breyer: Like New York.

For example, I happen to know has a law that a Federal judge from Washington couldn't marry someone.

I mean, you can get married to your own wife, et cetera, but you can't marry two other people, but the District of Columbia has the opposite law.

So if I marry two people in Washington D.C. and they happen to move to New York, you are saying that New York doesn't have to recognize that marriage because it doesn't comport with the marriage of New York; is that your point?

Joseph F. Whalen: Yes, Your Honor.

I think that's --

Stephen G. Breyer: And then what case says that? I think there are a few people going to get nervous about this. (Laughter.)

Joseph F. Whalen: My -- my answer is based on essentially this Court's decision in Nevada v. Hall, because the State's own law sets its own policy and the other State's law would be in conflict with that State's policy.

Stephen G. Breyer: But here the policy would be we distrust Federal judges from outside the State. And even that, they would get away with, in your view, because I'm next going to ask, and what is the difference between that kind of policy and the policy that says, well, we don't recognize the gay couple's marriage for the reason that we fear that if gay couples get married, even if they have children and adopt them, and even if we allow people who are not gay to get married and they don't have children, despite all that, this policy, which I've had a little trouble understanding, warrants not recognizing it? Did you follow that question? It was a little complicated.

Joseph F. Whalen: I -- I probably did not, but I'm going to try to answer.

I -- I think the underlying focus is not just that there's a policy, but that there's a legitimate policy.

And as this Court's questions earlier indicated, I proceed now on the assumption that the Court has decided the first question in the State's favor, and is determined that, indeed, the State's policy to maintain a traditional man-woman definition of marriage is, indeed, legitimate, and we obviously agree that it is, and the Court should so decide.

So --

Sonia Sotomayor: So you don't see --

Antonin Scalia: But none of this has anything to do with Article IV, right? None of this has anything to do with Article IV? Full faith and credit, right?

Joseph F. Whalen: It -- full faith and credit provides the background for the -- for the States to be able to assert that, indeed, we have the right to decline to recognize the out-of-state marriage based on the out-of-state --

Ruth Bader Ginsburg: You're --

Joseph F. Whalen: -- law --

Ruth Bader Ginsburg: You're making a distinction between judgments -- full faith and credit applies to judgments.

You can't reject a judgment from a sister State because you find it offensive to your policy, but --

Joseph F. Whalen: Yes, Your Honor.

Ruth Bader Ginsburg: -- full faith and credit has never been interpreted to apply to choice of law.

Joseph F. Whalen: Yes, Your Honor.

Ruth Bader Ginsburg: That -- that's the distinction.

Joseph F. Whalen: Yes, Your Honor.

And -- and so, in -- in essence, by deciding whether or not to recognize another State's marriage, the -- the State is deciding whether or not to recognize the other State's law under which that marriage was performed.

Sonia Sotomayor: I'm sorry.

You don't see a fundamental difference between creating a marriage and recognizing a marriage? You don't think there's any difference in terms of the rights of people? If States regularly don't say that the prerequisites to marriage in our State are not necessarily against public policy -- and they have said it for age differences, they have said it for a lot of things, why -- why would the gay marriage issue be so fundamental that that can lead them to exclude a whole category of people from recognition?

Joseph F. Whalen: It goes, Your Honor, to the essence of what I think, in fact, both -- both questions before the Court today get at.

And that is that -- the fundamental notion of what marriage is.

And -- and let me answer the question, if I could, in this way.

The -- the comparison between how States have operated with regard to recognizing or not recognizing marriages before, in other words, before there was any idea of same-sex marriage, can't be compared at all to how States are responding across the board with regard to the phenomenon of same-sex marriage. And here's the reason: Commentators have observed that when all States are on the same page about what marriage is, that's where the place of celebration rule evolved from, that every State had the same definition.

Every State shared the same interest, and so there was a liberal policy of recognizing marriages from one State to the other because --

Sonia Sotomayor: You think marriage --

Antonin Scalia: That's just not --

Sonia Sotomayor: -- decrees are closer to laws?

Joseph F. Whalen: I'm sorry?

Sonia Sotomayor: You think marriage decrees are closer to laws than they are to judgments?

Joseph F. Whalen: I do --

Sonia Sotomayor: I mean, you need to get a judgment to divorce.

And I think that, in my mind, that makes the decree much closer to a judgment than it does to a law.

Joseph F. Whalen: I -- I think that the -- the performing of a marriage is closer to law is because, in essence, when the marriage is performed, all the rights that flow from that State's laws evolve to that couple. And it's different than judgments and so does not deserve the same kind of treatment that judgments would, under the full faith and credit jurisprudence, because of the reason that this Court drawn that distinction.

Sonia Sotomayor: So what is an order under the Constitution, or --

Sonia Sotomayor: -- an act under the Constitution that's not a judgment?

Joseph F. Whalen: I didn't catch the first part of your question, Your Honor.

Sonia Sotomayor: How do you separate out the terms that Justice Scalia gave you? They're not all judgments.

Joseph F. Whalen: No.

I -- I --

Sonia Sotomayor: Three different terms were used, or four different terms were used.

Joseph F. Whalen: Acts, records, and judicial proceedings is what I understand --

Sonia Sotomayor: Acts --

Joseph F. Whalen: -- what I recall and that --

Sonia Sotomayor: -- records --

Joseph F. Whalen: And my understanding of the Court's jurisprudence has been that that refers to laws and records and judgments of another State.

And marriages have always been treated as a conflict of law matter throughout all the years -- in fact, it -- it gives rise to the entire conflict of law doctrine on -- on which Petitioners rely here, which is Joseph Story's Commentaries -- Commentaries on the Conflict of Laws.

John G. Roberts, Jr.: This second -- outside of the present controversy, when was the last time Tennessee declined to recognize a marriage from out of state?

Joseph F. Whalen: Any marriage, Your Honor?

John G. Roberts, Jr.: Any marriage.

Joseph F. Whalen: 1970 is the last one that I could point to.

That involved a stepfather and stepdaughter. I would -- I would hasten to add, though, because of where -- what I was starting to describe with regard to how we got to this point, while -- while States were all playing along under the same definition of marriage, what they confronted in an unprecedented fashion was some States changing the rules of the game, if I can extend the metaphor, and so --

John G. Roberts, Jr.: Well, but they weren't playing along with the same definition.

There have always been distinctions based on age and family relationship.

So they weren't playing along under the same definition.

And still, despite that, it apparently is quite rare for a State not to recognize an out-of-state marriage.

Joseph F. Whalen: It -- it was and is quite rare, so long as we're talking about what marriage is, so long as we're talking about the fundamental man and woman marriage.

And that -- and that's my point, is that as soon as States were confronted with the reality that some States were going to redefine marriage or expand the definition of marriage to include same-sex couples for the first time, then it's unsurprising that they would determine, in keeping with their own laws, that they would not recognize those other States' marriages in -- in Tennessee.

Samuel A. Alito, Jr.: This second question puts both you and Mr. Hallward-Driemeier in a very unusual situation, because, first of all, we have to assume that this first question has been decided against the Petitioner, or we wouldn't get to the second question. So we have to assume that we would hold that a State has a sufficient reason for limiting marriage to opposite-sex couples.

And Mr. Hallward-Driemeier acknowledged that a State could refuse to recognize an out-of-state marriage if it has a very strong public policy against that marriage, if it's a polygamous marriage, if it's a -- a marriage of very young individuals. So the question is whether there could be something in between.

So there -- there's a -- a sufficient reason to -- for the State to say, we're not going to grant these licenses ourselves, but not a strong enough reason for us not to recognize a marriage performed out of state.

I suppose that's possible, isn't it?

Joseph F. Whalen: Well, let me answer it this way, and hopefully I'll -- I'm answering your question in doing so.

Let me be clear.

The -- the justifications that have grown over time and the requirement for a strong public policy reason to decline to recognize a marriage have grown up around the man-woman definition. Our position is that so long as we're talking about a marriage from another State that is not the man-woman definition, that it is simply the State's interest in maintaining a cohesive and a coherent internal State policy with regard to marriage that justifies not recognizing those marriages. Otherwise, as -- as the question that was put earlier indicated, any resident of the State could go to another State, get married, come back and demand to have their -- their marriage recognized.

Sonia Sotomayor: That happens already. People who are not permitted to be married in a lot of States go and do that, and they come back to their home States, and the home States follow the rule of marriage celebration.

Joseph F. Whalen: And -- and, again, we're talking about the fundamental distinction between marriage as the States see it, the traditional definition, and the same-sex marriages that other States have --

Sonia Sotomayor: Well, they have --

Joseph F. Whalen: -- have adopted.

Sonia Sotomayor: The prerequisites are always a State's judgment about marriage, about what should be a recognized marriage.

Joseph F. Whalen: But, Your Honor, the -- the --

Sonia Sotomayor: They make exceptions.

Joseph F. Whalen: -- the difference here, I think, is -- is the -- the landscape that we find ourselves in.

Tennessee, Ohio, Kentucky, and other States with a traditional definition of marriage have done nothing here but stand pat.

They have maintained the status quo.

And yet other States have made the decision, and it certainly is their right and prerogative to do so, to expand the definition, to redefine the definition, and then to suggest that other States that have done nothing but stand pat now must recognize those marriages imposes a substantial burden on the State's ability to self-govern.

Ruth Bader Ginsburg: It is -- it is odd, isn't it, that a divorce does become the decree for the nation? A divorce with proper jurisdiction in one State must be recognized by every other State, but not the act of marriage.

Joseph F. Whalen: I -- I understand the point, Your Honor, and, again, I think it falls within the Court's recognition of a distinction between judgments and laws.

And here I think we're dealing only with laws, and, again, it would allow one State initially -- literally one State, and now, a minority of States to legislate fundamental State concern about marriage for every other State quite literally.

That's -- that's an enormous imposition and an intrusion upon the State's ability to decide for itself important public policy questions and to maintain -- particularly when you're talking about recognition.

There -- there is an impact that occurs when one State is asked to recognize another State's same-sex marriage because of the fact that its entire domestic relations policy has been built around the expectation and the presumption that there is a man-woman relationship.

That -- in Windsor, this Court recognized and observed that marriage is the foundation of the State's ability to regulate domestic relations. And to give you one concrete example that is -- that it comes up in this case itself.

One of the incidents of marriage is the child -- the presumption of parentage that comes with a marriage.

And for the State to be required to recognize another State's marriage where there is a child of that marriage in a same-sex situation would fundamentally alter the State's definition of parentage, which I can tell you --

John G. Roberts, Jr.: Well, I don't understand your argument.

I understand your argument that it's a fundamental public policy question about whether you're going to recognize same-sex marriage or not.

But I don't see the difficulty in following the consequences of that under domestic relations law as treating a couple as married.

And it -- and so the first question is a big step, but after that, it seems to me that the question of how you apply the domestic relations law is pretty straightforward.

Joseph F. Whalen: Well, it -- that's part of the reason why I wanted to mention this in particular because a large part of the Petitioners' focus has been on the impact on the children that are involved. And -- and I think it's important for the Court to recognize that in many States -- and I can tell you in Tennessee that the definition of parent has always been biologically-based.

That marital presumption of parentage has its foundation in biology.

It has its foundation in the man-woman relationship. So when and if a State were required to recognize a same-sex marriage and so therefore, change the pronouns and change the terminology to apply --

Sonia Sotomayor: Oh, but you do that for adoptions.

What's -- what's the problem?

Joseph F. Whalen: Because --

Sonia Sotomayor: This -- this is a really big deal?

Joseph F. Whalen: It -- it is a big deal, Your Honor, because you are changing the way the State defines a parent.

And in the adoption context, you have to understand adoption and the traditional definition of -- of marriage, they work in tandem.

They work together.

And as Mr. Bursch described, the objective with regard to marriage is to link children with their biological parents.

When that breaks down, then there's adoption.

And so yes, there's an effort to --

Sonia Sotomayor: Do you think that a State can fail to recognize the birth certificate of a particular -- another State?

Joseph F. Whalen: I'm not --

Sonia Sotomayor: Just that.

Do you think the word "records" in the Constitution includes birth certificates?

Joseph F. Whalen: Yes.

Sonia Sotomayor: So California without any reason, no suspicion of fraud, no anything, could it refuse to recognize another State's birth certificate?

Joseph F. Whalen: I -- I have to admit, Your Honor, I -- I can't speak to that intelligently.

Sonia Sotomayor: Records to me has to have a meaning.

Joseph F. Whalen: Record has a meaning.

It does, Your Honor.

The reason that I'm hesitant is that I know that there -- there is disagreement in the -- in the cases about exactly what the impact of that is between whether that just means we have to acknowledge the existence of the record for the evidentiary purposes, or whether the effect of the record has to be acknowledged. And as I stand here I can't speak to it.

Sonia Sotomayor: I recognize that that's an issue.

Joseph F. Whalen: Yes, Your Honor.

Sonia Sotomayor: But if a birth certificate were to be a record, don't you think a marriage certificate -- it's an official act of a State.

Joseph F. Whalen: Well, the -- the marriage certificate --

Sonia Sotomayor: As a record.

Joseph F. Whalen: -- certifies -- and I guess it goes exactly to the point.

It certifies the fact that there was a marriage.

I think that the laws that allowed that marriage to occur, when they are different fundamentally with the laws of a State like Tennessee, preclude the application of that same principle from one State to the other. With regard to the effect of requiring recognition on a State, I think it's important also to consider the fact that the Petitioners have complained about the impact that it has when they move from one State to the next with regard to the rights that they enjoyed under the marriage as it was defined in New York, for example, or California. Federalism accommodates this situation.

It is the strength of our Federal structure to accommodate the very difference of viewpoint and the very difference in approach that this fundamental debate that we're having about same-sex marriage generates.

And so it makes all the sense in the world, with respect to that, to allow the Federal structure to do what it was designed to do and to accommodate those different points of view.

And that is why we asked the Court to determine that the Fourteenth Amendment does not come in and then disrupt that balance and impose a duty on one State to recognize the laws and recognize the marriage of a different State because of the intrusion that it would have on that State's public policy.

Elena Kagan: Mr. Whalen, just a quick question.

Joseph F. Whalen: Yes, Your Honor.

Elena Kagan: You -- you acknowledge that if the State loses on the first question, then the State also loses on the second question? It's a fortiori? That's --

Joseph F. Whalen: I do, Your Honor.

Elena Kagan: Okay.

Joseph F. Whalen: Yes, Your Honor.

If there are no further questions, we ask you to affirm.

John G. Roberts, Jr.: Thank you, counsel.

Joseph F. Whalen: Thank you.

John G. Roberts, Jr.: Thank you, counsel. Case is submitted.