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ABSTRACT. Written and posted in late spring 2015, after the oral arguments in Obergefell and before the Court announced its decision, this article is being published as of that date, with tenses unchanged and without including subsequent developments in the discussion. The author intends to publish further analysis of the Court’s work in the area of marriage in light of the final decision in Obergefell and the responses that have ensued. This pre-Obergefell essay is offered as an entry in the author’s overall scholarship on access to marriage, in terms of both procedure and substance. This article argues that the Supreme Court should require that all states recognize legal same-sex marriages rather than mandate under the Fourteenth Amendment that states must issue marriage licenses to couples of the same sex. The briefing that advocates, including most amici, provided to the Supreme Court was generally abstract. The Court did not benefit from a combined answer to the two questions. It therefore did not hear a useful comparison of why a Yes to recognition, with a No to mandating authorization, might be a superior approach. If the Court were to require only recognition, it could avoid constitutionalizing marriage law; it need not decide the recognition issue under the Fourteenth Amendment, despite its having certified the question under the Fourteenth Amendment. Rather, principles of comity draw upon the Court’s expertise in federalism and do not call for a direct intervention in state law-making about marriage. Such an approach could incentivize some states to offer their marriage licensing, and even their substantive law, to couples who do not travel to the state. Gay rights activists could help improve and modernize marriage licensing procedure by encouraging states to provide for the issuance of licenses to couples unable to travel or to be present together. They could also bring energy in the state legislatures and before state courts to the substantive evolution of marriage law that is less defined today by beliefs about gender complementarity but not entirely severed from the element of gender in the moral architecture of many marriages. The relevance to marriage law of gender difference in a regime of marriage law that includes same-sex couples does not by any means pose a threat to the institution of marriage. But abstract arguments about the essence of marriage fail to bring the Court’s attention to a constitutional path permitting wide input into decision-making, with the benefit of comity among the states as a means of ensuring respect for all marriages and families. A shortsighted judicial shortcut to solve a complex issue by resort to grand abstraction may seem to cure an injustice, but at the same time loosen the rooting of a critical institution in the nourishment of immersion by policy-makers in its practical requirements. pp. 323–349

Keywords: creditable marriage goal; same-sex couple; government; federalism

How to cite: Kuykendall, Mae (2015), “Creditable Marriage Goals and Government Interests: A Systems Approach for Handling Complexity, Apportioning Expertise, and Using Federalism (Anticipating Obergefell),” Journal of Research in Gender Studies 5(2): 323–349.

Received 25 July 2015 • Received in revised form 12 December 2015
Accepted 12 December 2015 • Available online 20 December 2015

MAE KUYKENDALL
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Michigan State University College of Law

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