SCOTUS Justices Roberts & Kennedy

Just prior to the Fourth of July holiday, on one of the last days of its term, the SCOTUS announced the split-decision in Obergefell v Hodges, a case from the 6th Circuit Court of Appeals, our appellate circuit, that also included the Michigan case of April DeBoer. In Justice Anthony Kennedy's opinion, the right of same-sex couples to marry is treated as a fundamental right under the 14th Amendment to the United States Constitution.

Readers of this blog are well familiar with the various marriage equality civil rights struggles that have played out in courts across the country over the past decade. But it was never a given that the High Court would pronounce such a sweeping endorsement of a now-fundamental right.

The right to marry the person of one's choice, whether that person be of another race or of the same gender, is perhaps one of the most important decisions we make in our lives. So it does follow that such a right, although not expressly stated in our constitution, is truly fundamental; our basic human experience makes it so.

The 5-4 marriage equality decision, authored by Justice Kennedy, was joined by all three female justices as well as Justice Steven Breyer. Each of the conservative justices authored scathing dissents with Justice John Roberts being the most analytic among the quartet.

The basic holding of the majority opinion is that the 14th Amendment to the U.S. Constitution requires all states to license a marriage between two persons of the same gender and to recognize same-sex marriages performed in other states.

In reaching this conclusion, Justice Kennedy discussed how the institution of marriage has evolved since the Colonial era, marked by arranged marriages. He then cited to some of the landmark cases involving homosexuality such as Bowers v Hardwick [the 1986 case that upheld Georgia's criminalization of certain homosexual acts]; Lawrence v Texas [the 2003 decision overruling Bowers]; and of course, United States v Windsor [striking down as unconstitutional the federal Defense of Marriage Act which defined a marriage as solely between one man and one woman in the federal benefits context].

Justice Roberts' principal dissent makes the following points, as summarized by Cornell University Law Professor Michael C. Dorf:

(1) there is a difference between support for same-sex marriage as a policy matter and as a constitutional matter; (2) premature constitutionalization of a right that cannot yet be said to be deeply rooted in the nation’s history and traditions risks undermining long-term support for the right because defeat of the anti-same-sex-marriage position in the democratic process would be more acceptable; and (3) the majority’s logic opens the door to claims such as a right to polygamy. 

Voicing the true conservative disdain for an activist Court, Justice Roberts says that SCOTUS should not "seize for itself" a question that our Constitution leaves for the people to decide using the political machinery.  "Who do we [justices] think we are?", he asks.

While the SCOTUS does generally eschew significant constitutional pronouncements, it has a long-tradition of righting the wrongs of rogue state legislatures and an occasionally errant Congress. This is the essence of our check-and-balance system of federalist government.

Before news of the decision in Washington D.C. even hit the left coast, new issues involving same-sex partnerships were being conjured-up by legal scholars. Now that such couples have a constitutional right to marry, when they do so, can disputes involving employment and housing discrimination be far behind?  Also, where does this leave the so-called "religious preference" laws?

The nice thing about our ever-evolving common law system, from the lawyers' perspective, is that there is always another legal dispute just around the corner; the dust never really settles.

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Here come the lawsuits.  In the wake of the SCOTUS ruling in June striking down same-sex marriage bans and granting federal benefits to same-sex married couples, many couples are finding their way to court houses across the country.

Most states that have what could be called "gay-friendly" legislatures, something that we would expect changes over time, have already passed laws specifically granting gay couples the right to marry in a dozen states.  So the strategy among proponents of the notion of gay marriage has shifted from the state capitols to the county courthouses.

In Santa Fe County, NM, for example, a family court judge ordered the county clerk's office to issue marriage licenses to couples without regard to their gender or sexual orientation, ruling within a brief hearing that doing so was now unconstitutional.  At the time of this blog post, 7 counties in New Mexico have followed suit.

In neighboring Texas, the Supreme Court has scheduled oral arguments for November in two cases where same-sex married couples were granted divorces from Texas county family courts.  The Texas Attorney General has intervened in the divorce proceedings, asserting the divorces issued by the family courts are invalid because they implicitly recognize same-sex marriage; something proscribed by Texas law.

Cases in Tennessee and Kentucky are also percolating through the state courts, testing state laws proscribing same-sex marriage.  In one of the several cases pending in Kentucky, one-half of a same-sex married couple is on trial for murder and the issue in the court is whether his "better-half" can be compelled to testify, or whether he should be granted spousal immunity.

In another high-profile case from Franklin County, Kentucky, a same-sex couple filed suit against the Governor on grounds that Kentucky's outright constitutional ban of same-sex marriages violates the Equal Protection clauses of the U.S. and Kentucky constitutions.  This is the same issue that was decided in California in the SCOTUS Windsor case.

Currently, there are too many same-sex marriage cases to track unless you are a law professor or law student writing a law review article on the subject.  Unlike the SCOTUS' 1973 Roe v Wade decision, considered the height of judicial activism, which created a sweeping constitutional ban on anti-abortion legislation, last term's same-sex marriage decision adopted a state-by-state approach.

While the momentum toward recognition of same-sex marriage as a civil right has gained steam since we here at the Law Blogger picked-up on the issue back in 2009, it will take at least a quarter century for the current dust to settle.  At least that is our prediction.

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We've been watching the gay-marriage case, Hollingsworth v Perry, for two years; here's a link to our first post detailing case.  Two well-funded homosexual couples from California, one gay, one lesbian, challenged California's proposition 8 in federal court back in 2008, and the case finally will be orally argued tomorrow at the SCOTUS.

Their lawyers, Ted Olson and David Boies of Bush v Gore fame, are well-suited to the task of bringing the couples' privacy-based arguments to the Supreme Court.  Olson was Solicitor General under President Bush; he appears to have changed his stripes for this one.

Since that original post, two other consolidated federal cases have made their way through the federal court system and will be argued before the SCOTUS on Wednesday.  United States v Windsor challenges the denial of federal benefits for gay couples under the Defense of Marriage Act [DOMA].

As many as 17 states have filed amicus briefs in opposition to gay marriage.  Court watchers are bracing for a seminal ruling along the order of the High Court's Roe v Wade decision that legalized abortion.

Others say, "not so fast."  Justice Ruth Bader Ginsburg is one such voice.  She has made a series of public comments lately critical of such sweeping decisions; they go too far too fast says Ginsburg.

A less judicially active approach in the Roe v Wade would have been to strike down the Texas anti-abortion law on an "as applied" basis, but leaving the broader constitutional questions to be determined on a state-by-state basis.  Of course, this is not what the Roe v Wade Court did; the political and cultural fall-out continues to this day.

Considering possible outcomes in the gay-marriage cases being argued today, the post-modern SCOTUS faces the choice of invalidating California's Proposition 8, and if they do, whether they do so in a broad or narrow fashion.  Expect concurring and dissenting opinions; perhaps even a plurality decision which, by its nature, has a less-binding effect on subsequent courts.

Either way, we will keep our readers posted when the decision is announced at some point in June like we did when New York legalized same-sex marriage in June of 2011.  The results from these cases will be important to Michigan which, like California, passed a constitutional amendment declaring marriage to be a status limited to heterosexual couples.

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