When Are Distinctions Based on Marital Status Unconstitutional? What We Can Learn From Considering Dog Custody Determinations

When the Supreme Court eliminated the constitutional right to abortion in 2022 in the Dobbs case, the three dissenting Justices worried--and Justice Thomas in a concurrence hoped--that the ruling portended the elimination of other unenumerated rights. Justice Thomas named Griswold v. Connecticut (finding a right of married couples to use contraception), Lawrence v. Texas (finding a right of consenting adults, including gay adults, to sexual intimacy), and Obergefell v. Hodges (extending the marriage right to same-sex couples), as among the precedents he wished to reexamine.

Justice Alito's majority opinion disclaimed any interest in overruling these or any other cases not involving abortion, but his ground for distinguishing the other rights was a non sequitur: they don't involve the destruction of human life or potential life; that's a non sequitur because the Court's rationale for rejecting the abortion right was that it lacked a proper historical pedigree circa 1791 or 1868, which is also true of the rights protected in the cases listed by Justice Thomas.

Nonetheless, it is unlikely that the Court, at least as currently comprised, will overrule these other precedents. However, we could well see the Court reading the existing precedents quite narrowly. Expect the Roberts Court to characterize even very straightforward applications of existing precedents as demands for new rights, which will be rejected under the history-and-tradition approach of Dobbs. Indeed, we have already seen at least one example of this phenomenon. Dissenting in Department of State v. Muñoz earlier this year, Justice Sotomayor (joined by Justices Jackson and Kagan) accused the majority of defining the incidents of marriage very narrowly and thus in violation of the majority's pledge in Dobbs.

It is not difficult to imagine a future in which substantive due process cases come to resemble qualified immunity and habeas corpus cases--in which the Court treats a scenario that differs in virtually any way from the facts presented in the precedent case as calling for a rule of law that is not "clearly established" (in qualified immunity cases) or that is "new" (in habeas cases). If that comes to pass, lawyers will need to look for other means of attack.

Equal protection arguments hold out some potential for two reasons. First, the Justices who disdain substantive due process have not showed the same disdain for equal protection arguments. Thus, they have not yet imported the history-and-tradition approach into equal protection cases. Indeed, when the Court invalidated race-based affirmative action last year, the majority opinion of Chief Justice Roberts did not even attempt a serious reply to the historical objections raised by Justices Sotomayor and Jackson in dissent. Only Justice Thomas attempted to argue (at best tendentiously) that the Reconstruction Congress and the ratifiers of the Fourteenth Amendment understood the Equal Protection Clause thereof to forbid what we now call race-based affirmative action. Ahistorical equal protection thus remains a potentially viable approach.

Second, some of the leading substantive due process cases were originally or alternatively decided on equal protection grounds. Skinner v. Oklahoma (invalidating sterilization as a punishment for recidivists) was an equal protection case (because the penalty did not apply to white-collar recidivists). Loving v. Virginia (invalidating a prohibition on interracial marriage) was primarily an equal protection case, with eight of the nine Justices invoking substantive due process as an alternative ground. In both Lawrence and Obergefell, Justice Kennedy indicated that due process and equal protection work synergistically. And most crucially for my purposes now, Eisenstadt v. Baird relied on equal protection grounds to extend the right of married couples to use contraception recognized in Griswold to cover unmarried couples as well.

Some readers might fairly accuse me of naïveté. If the Justices want to reject a right, they'll do so under both substantive due process and equal protection. That's fair, but there may be opportunities to obtain victories in lower courts, and, depending on the context, it's possible that the conservative Justices' anxieties about substantive due process might not always apply to parallel equal protection cases. Accordingly, I want to take seriously the possibility of at least some equal protection challenges succeeding where substantive due process challenges would fail. I'll focus on what might seem like a flimsy ground--the assertion by the Eisenstadt Court that the distinction between married and unmarried couples denies equal protection.

How can that be? The law gives married couples numerous rights and privileges that it denies to unmarried couples. It cannot be that all such rights and privileges must be extended to unmarried couples (or individuals) if they do not satisfy strict scrutiny. Wasn't the Eisenstadt Court simply being sloppy? Shouldn't the Court have relied exclusively on substantive due process?

Whatever the answer to that question, I want to suggest that at least some distinctions between married and unmarried couples do indeed deny equal protection. A recent essay in the New York Law Journal by attorneys Ian Steinberg and Samantha Cooper illustrates the point. (The essay is behind a paywall, but if you sign up for Law.com, which takes all of 30 seconds, you can read one article per month for free.) 

Steinberg and Cooper write about an oddity in the domestic relations law of New York State. As they explain, one such provision states that in equitably distributing marital property upon a divorce or other dissolution of a marriage, if the spouses have a dog, cat, or "any other domesticated animal normally maintained in or near the household,"  "in awarding the possession of [that] companion animal, the court shall consider the best interest of such animal." However, as Steinberg and Cooper further explain, because that provision is lodged in a code section dealing with the dissolution of a marriage, it does not apply to the dissolution of a nonmarital relationship in which there is a companion animal. In short, New York law considers a human child's best interest upon the dissolution of the bond between the child's parents (or guardians, etc.) regardless of whether they were married but considers a companion animal's best interest only on the dissolution of a marriage.

Does that distinction pass even the nearly-toothless rational basis test? What possible reason could there be for, say, considering the best interest of a kitten or puppy that a married couple adopted a week before they decided to split up but not the best interest of a cat or dog who has lived with an unmarried couple for years?

To be sure, under the conventional rational basis test, one can invent post hoc rationalizations. Maybe the distinction incentivizes people with companion animals to whom they're very attached to get married, knowing that if the marriage ends, a judge will look out for the animal's interest in a way that no one will if they simply continue to cohabit. But . . . really? It's nearly impossible to imagine that consideration making a difference in a decision whether to marry, even at the margin.

Of course, the real explanation for the anomaly is historical. Courts in New York have a responsibility to divide marital property equitably. As Steinberg and Cooper explain, court cases under an earlier version of New York's law came to regard companion animals as a special form of property. By statute, the legislature then gave such animals greater status still in enacting the current best-interest provision. However, when an unmarried couple breaks up, property goes to whoever has the stronger possessory interest. There is no equitable distribution procedure, and thus the amendment that gave rise to the best-interest test for companion animals on marital dissolution did not affect unmarried couples.

Yet the fact that we can explain how the discrepancy in New York law arose doesn't mean the discrepancy makes any sense. That's why the dissent of Chief Justice Roberts in Obergefell is unpersuasive. He says there that the institution of marriage arose as a means of ensuring a stable two-parent family unit to raise children who result from accidental procreation, but because same-sex couples cannot accidentally procreate, there was no need for them to marry. Even assuming the Chief Justice's amateur efforts at sociobiology are sound, at most they provide an historical explanation for the traditional exclusion of same-sex couples from the institution of marriage; they do not provide anything resembling a justification in contemporary circumstances.

The same is true here. We can understand how, without any animus--indeed, with remarkable sensitivity towards cats, dogs, and other companion animals--the New York legislature wrote a provision of law that is under-inclusive. But that doesn't make the under-inclusivity rational.

To be clear, in suggesting that New York's distinction between the dissolution of married and unmarried couples with respect to companion animals fails rational basis scrutiny, I am not saying that should be the primary means of correcting the injustice. Steinberg and Cooper propose a statutory change from the legislature. I agree that this would be the cleanest, easiest route.

Should the legislature fail to act, a legal challenge could be brought under both the federal and state equal protection clauses. Although the New York Court of Appeals has held that the state's equal protection clause (Article I, Section 11) provides the same protection as its federal counterpart, as a result of the passage of the state ERA (approved by the voters last month), that provision has been expanded. Effective at the beginning of next month, the state equal protection clause forbids discrimination based on "race, color, ethnicity, national origin, age, disability, creed, religion, or sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy." Perhaps someone could argue that distinctions on the basis of marital status implicate reproductive autonomy--although that seems like a stretch.

Accordingly, a state constitutional challenge is unlikely to succeed where a federal challenge would fail. I won't go so far as to predict that the challenge I've outlined above--arguing that distinguishing between married and unmarried couples for the purpose of applying or not applying a best-interest-of-the-companion-animal standard--will succeed. I'll say only that there's a decent case to be made that it should succeed. And that there are probably other irrational legal distinctions drawn on the basis of marital status that likewise should be vulnerable to legal challenge, even if in fact they would be upheld by the current Supreme Court.