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Friday, May 1, 2015

SCOTUS and the Same-Sex Marriage Cases: Now What?

Justice Anthony Kennedy
Earlier this week, the Supreme Court heard oral argument on a landmark case that had consolidated a group of same-sex marriage cases from the Sixth Circuit Court of Appeals. The decision in the Sixth Circuit -encompassing the states of Michigan, Ohio, Kentucky and Tennessee- upheld state laws banning same-sex marriages.

In all the states in the Sixth Circuit, and in nearly all the other states in the Union, these state law bans have been challenged by well-organized and often well-funded same-sex litigants. The Sixth Circuit case upholding the state law bans was unusual to the extent that it was the first federal circuit court of appeals to rule this way; all the other federal circuits that considered the issue struck down the state law bans against same-sex marriage as unconstitutional.

This is exactly the type of case that is accepted by the United States Supreme Court. Now that the High Court has heard oral argument in the case on Tuesday, following the submission of nearly 100 briefs, that august body is actively considering how to decide the matter.

There has been and will be much legal analysis forthcoming on this case. Most of the speculation focuses on whether the Supreme Court will issue a sweeping constitutional ruling like it did in the 1967 Loving v Virginia case [invalidating state laws that prohibited interracial marriage].  Some legal scholars predict the Court will find a fundamental constitutional right to marriage.

If so, all state laws prohibiting same-sex marriage will be voided. The High Court, in granting certiorari in the 6th Circuit cases, gave itself a compromise exit. It certified a second issue: the question as to whether states are required to recognize valid same-sex marriages from other states.

Thus, even if the Court does not find a fundamental right to marry, it can still require states to recognize valid marriages from other states. For example, although Michigan's law against same-sex marriage would remain on the books as a valid state law, a same-sex couple that was married in Massachusetts could move to Michigan as a married couple and their marriage would be legally recognized here in Michigan.

Of course, there is also the possibility that the Court rules against marriage equality on both issues, leaving the matter to be determined by the states through their respective legislatures and referenda. Depending on how Justice Anthony Kennedy [the so-called swing vote] sees the case, this is a real possibility.

The SCOTUS is expected to issue their decision in late June, probably just before they close their session for the summer. Then we, as a society, will know whether we are free to select our marriage partners for ourselves, or whether the government will tell us who to select.

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