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Wednesday, January 21, 2015

SCOTUS to Consider Michigan's Same-Sex Adoption and Companion Marriage Cases

They finally did it on their own terms, but the SCOTUS has granted certiorari in the DeBoer Same-Sex adoption case, and the consolidated marriage cases coming from the other states in the 6th Circuit Court of Appeals [Ohio, Kentucky and Tennessee].  Unlike most granted petitions -where the issue(s) to be presented to the High Court are framed by the petitioner- the order granting certiorari in DeBoer included the Court's own version of the two questions it will now consider:
  • Does the 14th Amendment require a state to license a marriage between two people of the same sex?
  • 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 briefing is already underway and will likely include a host of amicus curiae contributions; oral arguments, a whole two and a half hour's worth, will take place in April, the last month for argument, with a decision to follow toward the end of the Court's term in June.

It is now well-known, but worth repeating, that each of the 14 states that persist in banning gay marriage have their state laws under some form of appellate review. When finally decided, the SCOTUS same-sex adoption and marriage cases will affect the status of this handful of holdouts, as well as provide some certainty, one way or the other, to the other 36-states that do not proscribe same-sex marriage or adoptions.

Some legal scholars opine that the SCOTUS, in fashioning the issues as they have, is appropriately focused on the two core constitutional issues that need deciding in these post-modern-day civil rights cases. Other legal scholars posit, on the other hand, that the High Court has again left open a path, as in the Windsor case, that stops short of outright requiring states to issue same-sex marriage licenses.

As Michigan Attorney General Bill Schuette says repeatedly, the sooner SCOTUS decides these issues the better.

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