Supreme Court Will Hear Gay Marriage Case

After years of political and social debate about the existence of the right of same sex marriage, it appears the issue will come to a resolution this year after the Supreme Court agreed to take on the gay marriage question directly.  Although the Court declined the opportunity to reject or affirm the right to gay marriage in 2013’s United States v Windsor, the recent wave of legislation challenging gay marriage bans directly has resulted in a split opinion among federal courts that the Supreme Court intends to resolve. 

Supreme Court Accepts Gay Marriage Challenge

Last year the Justices refused the opportunity to speak on gay marriage by denying appeals from several states with same sex marriage bans struck down by lower federal courts.  With the lower courts consistently against gay marriage bans, the Supreme Court saw no reason to intervene, and the issue was tabled until a circuit split forced the Court to get involved.  While the lower federal courts varied in the reason the 14th Amendment, which ensures equal protection and due process to all citizens, protected gay marriage, the courts were consistent in outcome: gay marriage bans are unconstitutional.

The split needed for Supreme Court intervention came when the Sixth U.S. Circuit Court of Appeals broke ranks with the federal judiciary by upholding same sex marriage bans in Kentucky, Michigan, Ohio, and Tennessee – the first federal ruling in favor of gay marriage prohibition. Applying a federal argument the 6th Circuit determined that the four states had sufficient government interest to ban same sex marriage, and the 14th Amendment did not protect a universal right for all couples to marry.  Immediately after the ruling, the unsuccessful challengers alleging the same sex marriage bans were unconstitutional filed an appeal to the Supreme Court. 

With no opposition to the appeal from the four states, the Court agreed to decide two critical questions that are likely to settle the gay marriage debate:  1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth 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? 

State of Gay Marriage

Whether by voter election or federal judiciary compulsion, gay marriage is now legal in 36 states and the District of Columbia.  While gay marriage proponents can rightly be confident that such a majority of states allowing the institution is indicative of a trend towards the right to universal marriage, it is worth noting that most of those 36 only allow gay marriage because a federal court found bans against the practice to be unconstitutional.  Should the Supreme Court agree with the Sixth Circuit, many states that currently allow the practice will be able to reenact laws banning it, and many are likely to at least attempt to do so.

How Will the Supreme Court Rule on Gay Marriage?

While it is difficult to project the outcome of Supreme Court cases with certainty, several factors, some of which are external to the legal arguments, suggest that gay marriage proponents have the five votes necessary to rule that same sex marriage bans are unconstitutional. Although not a singularly determinative factor, the significant and unavoidable shift in public opinion of towards supporting gay marriage paves the way for the Justices to protect the practice without concern of political or social backlash.  Acceptance of gay marriage as a non-harmful element to society undermines arguments that support banning it, and the Supreme Court will not be oblivious to the public support of the issue.

More importantly, challengers to gay marriage laws have largely been successful in lower federal courts because of compelling legal arguments supporting the theory that the 14th Amendment prohibits states from discriminating against gay couples.  Several worthy rationales for overturning gay marriage bans have been advanced, giving the Justices substantial legal support for a decision in favor same sex marriage supporters.  Although there is a not-insignificant federalism argument supporting the right of states to make decisions about who has the right to marry, it is unlikely that Justice Anthony Kennedy, the likely swing vote, would adopt such a position in this case.

Justice Kennedy, writing for the majority in United States v Windsor, did take a federalism approach when striking down provisions of the Defense of Marriage Act (DOMA) that refused federal recognition of state approved gay marriages, however, his language throughout the opinion indicated he supported the right of gay couples to marry.  Notably, Kennedy wrote that laws based on “animus” against gay couples are unconstitutional, which gives some insight to his opinion the legality of same sex marriage bans.  Although Kennedy may determine that the challenged laws in this case do not have their genesis in animus, the tone of his Windsor opinion should give hope to supporters of gay marriage that the Supreme Court has the votes necessary to recognize marriage equality for same sex couples.

The case is likely to be argued in late April with the decision coming towards the end of June before the Supreme Court breaks for the summer.

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