The Supreme Court will hear extended arguments on Tuesday about the legality of same-sex marriages in four states. Its eventual decision could be a landmark civil rights moment, or a move that would confuse a lot of people on both sides of the issue.
Same-sex marriage supporters believe the unions are permitted nationally under the Constitution’s Due Process and Equal Protection provisions. But four states in this lawsuit - Ohio, Michigan, Kentucky and Tennessee - believe same-sex marriage eligibility should be determined by the states, through a political process that gives voters a role in the decision.
The table was set for these arguments in June 2013, when the Court ruled in United States v. Windsor that the federal Defense of Marriage Act wrongfully denied federal benefits to same-sex couples.
Justice Anthony Kennedy wrote the majority opinion in the Windsor case. He said clearly that the Windsor decision didn’t involve the legality of same-sex marriages at the state level.
“DOMA contains two operative sections: Section 2, which has not been challenged here, allows States to refuse to recognize same-sex marriages performed under the laws of other States,” Kennedy said. The majority also declined to say whether there was a constitutional right to same-sex marriage.
Kennedy did say that the purpose and effect of DOMA was to impose a “disadvantage, a separate status, and so a stigma” on same-sex couples in violation of the constitution’s guarantees of equal protection and due process in federal cases.
In his Windsor dissent, a defiant Justice Antonin Scalia argued that decision’s impact would lead to all states having to recognize same-sex marriages.
“As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by ‘ “bare . . . desire to harm” ’couples in same-sex marriages. … How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status,” Scalia said in 2013.
And many federal circuit courts since then have quoted Scalia and Kennedy in their decisions to overturn same-sex marriage bans that had been approved by state voters and lawmakers. But in November 2014, the federal Sixth Circuit Appeals Court, in a 2-1 decision, upheld same-sex marriage bans in Ohio, Michigan, Kentucky and Tennessee.
Circuit Judge Jeffrey S. Sutton said that the Supreme Court, not an “inferior” court like his, should decide the same-sex marriage issue. Sutton also made arguments to counter the findings of other federal Circuit Courts that same-sex marriage bans by states weren’t permissible.
The Supreme Court accepted the cases from the four states as one consolidated case, Obergefell v. Hodges, on January 16, and since then, about 150 case briefs have arrived in Washington.
The Justices are considering two questions: Does the 14th Amendment require a state to license a marriage between two people of the same sex? And does the 14th Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
The arguments will be complex. Same-sex marriage supporters will propose that a constitutional right to marry already exists and couples are entitled to equal access to that right, and such couples should have an equal ability to have their marriages recognized in all 50 states and the District of Columbia.
The four states will counter-argue that the Court is being asked to create a new constitutional right; that states have the right to decide their own marriage laws when it comes to same-sex couples; and states have a right to decide if they will recognize same-sex marriages from other states.
In general, there seems to be a consensus that the right to marry and recognition of same-sex marriages from other states are closely linked.
“Much of the written briefing in the four cases seems to proceed on the assumption that the two rights being claimed are not distinct, but closely intertwined. It is difficult, indeed, to imagine how the Court might rule in favor of one but not the other,” said Constitution Daily contributor Lyle Denniston, writing yesterday on SCOTUSblog.
Denniston also pointed to another unsettled factor in the arguments: What test will the Justices consider to figure out if a constitutional right has been violated by the state bans?
Three types of tests will likely be considered by the Court: a rational-basis test (meaning a state only needs to present a reasonable explanation for a law); a heightened-scrutiny test (requiring a state to show an important public interest); and a strict-scrutiny test (a very difficult test stating a law must serve a compelling purpose with a very narrow application).
“It is one of the truly strange facts about the Supreme Court’s modern history of ruling on gay rights that it has never settled on which of those three tests, or which variation of one of them, it actually applies in judging a given law or policy,” Denniston said.
And the potential outcomes could be confusing. One simple outcome could be that the Court decides that question in favor of same-sex marriage supporters, and the right is recognized nationally. But if a majority of Justices agree with Sutton and the Sixth Circuit Appeals Court, the four state lawsuits could be dismissed or sent back to the lower courts.
Same-sex marriage bans would remain in effect in Ohio, Michigan, Kentucky and Tennessee, and marriage bans could go back into effect in as many as 22 other states where federal judges struck them down. That could lead to political and social confusion as states try to decide to keep their bans or overturn them, and what legal rights would remain for couples married after the federal court decisions.
And there is chance the Court could send the cases back to the state courts to decide. An argument made by a conservative legal advocacy group, the Eagle Forum Education and Legal Defense Fund, said the cases must be refiled in each state’s own courts for them to decide in their traditional role of managing family law.
To be sure, there will be other possible outcomes from Tuesday’s arguments, but a final decision isn’t expected until late June.
Scott Bomboy is the editor in chief of the National Constitution Center.
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