SCOTUS Grants Cert in Marriage Cases

The Supreme Court has finally agreed to hear four appeals of lawsuits challenging state bans on same-sex marriage — Michigan, Ohio, Kentucky and Tennessee. The court waited until there was a circuit split, which happened when the 6th Circuit upheld the bans in those states late last year.

The justices ordered that the parties to the cases address two questions in their legal briefs: whether the Constitution requires states to issue marriage licenses to same-sex couples, and whether states must recognize same-sex marriages performed in other states where they are legal.

Advocates have called gay marriage the modern era’s most pressing civil rights issue, and the court’s action could mark the culmination of an unprecedented upheaval in public opinion and the nation’s jurisprudence.

The nation’s first same-sex marriage, the result of a Massachusetts court decision, took place less than 11 years ago. Now, more than 70 percent of Americans live in states where gay couples are allowed to marry, according to estimates.

The fact that the Michigan case is included is a very good sign. That case involves children more directly than most such cases as the plaintiffs are seeking to overturn the ban in order to adopt each other’s children. That is an arrow aimed directly at Justice Kennedy, whose majority opinion in the Windsor in 2012 was heavily focused on the impact on children, saying that refusal to recognize their parents’ marriages humiliates children.

My prediction remains the same: At the end of June this year, the Supreme Court will declare all such laws unconstitutional under the Equal Protection Clause and we will finally have marriage equality nationwide. And then the heads of bigots all over the will asplode. And then I’ll laugh. A lot.

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  • Alverant

    My prediction is that Scalia and four other justices will find some lame excuse to give religious male conservatives more rights than those who aren’t and decide the laws are Constitutional under the guise of religious freedom.

  • John Pieret

    The fact that the Michigan case is included is a very good sign. That case involves children more directly than most such cases as the plaintiffs are seeking to overturn the ban in order to adopt each other’s children. That is an arrow aimed directly at Justice Kennedy …

    Unfortunately, that issue may not be before the Court. It limited the appeal to only two questions:

    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?

    It is not at all clear that the Court will hear peripheral issues, such as a right to adoption. Now, of course, Kennedy will be reading the decisions (and probably the briefs from the Circuit court), and will be aware of the adoption issue and, if you are right about his concerns, that may well play into how he votes.

  • jd142

    I’m with Alverant on this. Everyone seems waaaay to optimistic about this. I wish it would have been declared legal(by any means) in all 50 states before it went to the Supreme Court. Even the “good” justices, seem too far removed from the realities of 21st century America to understand what is at stake.

  • John Pieret

    Alverant & jd142:

    Here is a good explanation why most lawyers expect the Court to overturn SSM bans:

    http://www.scotusblog.com/2015/01/symposium-unveiling-marriage-equality/

  • jd142

    @2 – and this is why I’m pessimistic. I’m sure they will say that the 14th does not require a state to license a marriage between two people of the same sex.

    As for 2, how does this work now? I don’t trust google to answer it for me. :) Here are two hypotheticals based on two news of the weird type articles I read yesterday.

    The state of Ubetistan allows marriage between first cousins. The state Ucannotistan says that sexual relations between first cousins is illegal. What happens when two adult first cousins who are married move from Ubetistan to Ucannotistan?

    Ubetistan has a Romeo and Juliet law that allows people less than 4 years apart to marry with their parents’ consent even if one or both are under the age of majority. Valentine, 18 and a senior in HS, marries Rosaline, 14 a freshman, with her parents’ consent in Ubetistan. They move to Ucannotistan after Valentine graduates. Is Valentine immediately arrested for pedophilia and put on their sex offenders list for having consensual sex with a 15 year old?

    Apparently there is a real incident where an 18 year old woman met her 37 year old father for the first time since she was like 3 or 5, they fell in love and they are now married in a state that does not consider sex between consenting adults as incest. They may still consider this creepy as all get out, and rightly so, but it isn’t illegal there.

    If all three of these marriages should honored by all other states, then we have hope. If not, then the court has a second opportunity to rule against gay marriage recognition.

  • marcus

    I think that if they were inclined to deny equal marriage rights that they would have already been granting stays in the cases where marriage bans were overturned, but many a slip between …(pick your favorite erogenous zone) and the lip. Hoping for the best!

  • http://drx.typepad.com Dr X

    I’m uneasy about this, but I hope equality optimists are correct in their predictions. It would be horrible if they’re wrong.

  • DukeOfOmnium

    I’d predict a 6-3 decision, with Kennedy and Roberts voting to strike down the laws. Roberts is reliably in the pockets of big business for most decisions involving, but I think that a lot of “social conservatives” are disappointed in him.

    Remember, this is a court that couldn’t muster four votes to grant cert on SSM decisions from the 4th, 8th, 9th and 10th Circuits.

  • DukeOfOmnium

    “most decisions involving commerce”, that should have said

  • whheydt

    Fortunately, I am neither trained nor competent to argue cases before SCOTUS… I would argues that, as long as a state licenses marriages, it is obligated issue licenses to same-sex couples for the obvious reasons. On the other point, I would argue that so long as a state generally recognizes out of state marriages, they are obligated to recognize the marriages of same sex couples as well.

    The solution for a state that really, really doesn’t want same-sex marriages is to drop licensing marriages at all, and to decline to recognize *any* out of state marriage. Of course, the resulting political (and economic!) carnage such decisions would cause is probably too much for your average politician or voter to bear, so–while some few extremist pols may talk about it–no real action in that direction will occur. (On the economic side what I’m thinking of is all the companies that will move their activities out of state to prevent the vast majority of their employees from leaving plus the refusal of nearly any employee being willing to be transferred into such a state.)

  • John Pieret

    jd142 @ 5:

    As a practical matter, most, if not all, states recognize marriages, under the Full Faith & Credit clause of the Constitution, even if they are not recognized by that state. The father-daughter incest example would be the trickiest. But that doesn’t take into account the Bill of Rights. There is no “class” of individual cousins or father-daughters or under-age people whose rights are threatened per se or that can make a claim to due process or equal protection. Sure, you can spin out examples where the lines seem to blur, but the courts usually limit themselves to the example before them in the case. In this case, you have a clear class of people (gays, lesbians, bisexuals and transgendered people and all the permutations thereof) who are denied what has already been determined to be a “fundamental right” (marriage) simply because they are the people they are and love who they choose to love merely because that is disfavored by a (shrinking and maybe no longer existent) majority.

    Age discrimination as to when you can marry will probably survive, since it has to do with “informed consent” and each locality’s determination of that. Incest-based denials of the right to marry will also probably survive based on the state’s interest in preventing bad genetic outcomes for any children, though improved contraception methods put that ban on shakier grounds.

    Look, Scalia has been pointing out, at least since Lawrence v. Texas in 2005, that the SSM sky is falling. It hasn’t stopped the Court yet. Just pray (or some secular equivalent thereof) that none of the less-than-completely conservative justices peg off in the next six months.

  • Michael Heath

    DukeOfOmnium writes:

    I’d predict a 6-3 decision, with Kennedy and Roberts voting to strike down the laws. Roberts is reliably in the pockets of big business for most decisions involving, but I think that a lot of “social conservatives” are disappointed in him.

    C.J. John Roberts was instrumental in overturning laws that defended black people’s voting rights in some of the racist states. That had a little if anything to do with promoting some narrow business interest.

    While I wouldn’t be shocked if Roberts joined the non-conservatives to protect gay marriage rights, I also wouldn’t be shocked if he voted to hurt gay people just like he voted to hurt black people.

  • Michael Heath

    Ed predicts:

    My prediction remains the same: At the end of June this year, the Supreme Court will declare all such laws unconstitutional under the Equal Protection Clause and we will finally have marriage equality nationwide. And then the heads of bigots all over the will asplode. And then I’ll laugh. A lot.

    I am not so optimistic. While we know that Justices Scalia, Thomas, and Alito are committed conservative partisans, so too is CJ Roberts though not as consistently. As so too is Justice Kennedy as revealed by his incoherent opinion on Obamacare.

    Yes I’m aware of Kennedy’s past decisions extending protection to gay people, but people change and Kennedy is increasingly behaving like one expects from those who consume conservative memes.

    So I wish the Supreme Court had never granted cert on this case and instead, let this controversy continue to play-out in the states and lower federal courts. Progress has been astonishingly fast where those courts are constrained by precedent and buttressed by an increasing popularity to protect gay individual’s rights and that of their family’s. At the highest court in the land, I fear raw partisan politics could determine the decision. Will Roberts and Kennedy act as devoted Republicans and conservatives, or will they instead acknowledge the existence of the equal protection clause? Denialism runs deep in both justices, so I will remain nervous and in no way confident like Ed is here.

  • marcus

    Michael Heath @ 13 Well, if want to go all rational about it! Sheesh!

    For some reason I am optimistic, probably because I find the alternative unimaginable, but I must admit, sadly, that you may be correct. Dunning-Kruger anyone?

    At any rate, I will continue to be irrationally hopeful until this is resolved.

  • monimonika

    Michael Heath @13,

    Am I correct in interpreting that you want the Supreme Court to let the rulings of upholding same-sex marriage bans in the Sixth Circuit stand? Even though it is creating a split from all the other rulings so far?

    The Supreme Court certainly did do as you wanted the previous time it was faced with whether to accept such cases. Then again, back then all of the cases were appeals of rulings striking down same-sex marriage bans. so there was no circuit split that needed to be contended with.

    I acknowledge your fear of the wrong decision being handed down by the Supreme Court, but is allowing four states to create confusion over the legality of same-sex marriage really the preferred answer?

  • chilidog99

    7-2 with Scalia and Thomas as the jerks.

  • hunter

    The majority opinion from the 6th Circuit assiduously avoided addressing the very questions that the Supreme Court listed in its order. Plus, if they’re going to pay any attention to stare decisis, the precedents line up strongly in favor of overturning state bans on SSM — Griswold, Loving, and Lawrence all say that the government may not intrude on intimate relationships between consenting adults. Windsor says that the state may regulate marriage as long as those regulations conform to Constitutional requirements, and the 14th Amendment requires that the states recognize fundamental individual rights, of which marriage is one.

    I wouldn’t be surprised to see Roberts join the majority in overturning the bans and writing the narrowest possible opinion.

  • http://drx.typepad.com Dr X

    @Michael Heath::

    So I wish the Supreme Court had never granted cert on this case and instead, let this controversy continue to play-out in the states and lower federal courts. Progress has been astonishingly fast where those courts are constrained by precedent and buttressed by an increasing popularity to protect gay individual’s rights and that of their family’s. At the highest court in the land, I fear raw partisan politics could determine the decision.

    That is my fear. I’d have liked to have seen even more states grant equality an even wider majority of Americans favoring equality to make it as uncomfortably bigoted as possible to turn back progress on equality.

  • whheydt

    Several points…

    1. “Wait for more states.” Right now, there are only 14 states that have bars against same-sex marriage. When Loving v. Virgina was decided, there were 16 states with anti-miscegenation laws in effect. Thus, we are closer to nationally recognized SSM rights now than we were to nationally recognized inter-racial marriage in 1967. By that measure, it’s time for SCOTUS to act.

    2. If you recall, the dissent from the 6th Circuit said (in effect), that’s a nice bit of philosophy, but it isn’t a legal argument. The dissenter accused the majority of deliberating baiting SCOTUS by creating an intended circuit split, not because they felt that was the correct legal result, but because they wanted to bait SCOTUS into talking the cases.

    3. I think Roberts is concerned about two things (other than actual law). First is how he (and his court) will be treated by history. He doesn’t want to be seen as another Taney. Nor does he want to be known for another “Roe v. Wade” decision the gets fought over for the next 20 or 30 years or more. On the other hand, he doesn’t want to be seen as being the last defender of the indefensible. He really can’t have it both ways. I suspect that, if it looks like a 5-4 decision, he’ll jump to the winning side and make it 6-3.

    4. There are big business ramifications and I expect to see bunches of amicus briefs show up. The comparatively few large(ish), closely held businesses run by extreme conservatives (e.g. Hobby Lobby) will argue that, if the states all have to allow SSM, they will find themselves “forced” to hire gays and to allow same-sex spouses to have family benefits, and (they will argue) that’s icky. The large public corporations (especially ones like Apple, MS, IBM, Google, etc.) will argue that it is bad for business if there are a minority of states where SSM is not permitted and/or not recognized because then they will have trouble moving people around to accommodate the needs of their businesses because gays–married, planning to marry, or potentially getting married–will decline to transfer to those states. Some companies may even argues that married coupes–gay or straight–are better customers, so barring SSM in a minority of states is generally bad for business.

    5. I suppose it is possible that SCOTUS will attempt to “split the baby” and decide that state *may* refuse allow SSM, just as some states disallow marriages that other states permit, based on age or consanguinity (or both!), and turn around and require all states to recognize marriages licensed in other states, regardless of what the local laws permit. This would, of course, be a de facto win for SSM. It’s be a little inconvenient in some places, owning to the distance to a state that sanctions SSM from a state that doesn’t, but it would mean that the states that aren’t willing to license SSM would still be stuck with having to apply all the rights and privileges that go with marriage to people that can’t get married in that state. It would probably–over time–cause the rest of the states to fall in line on SSM.

  • Michael Heath

    whheydt writes:

    1. “Wait for more states.” Right now, there are only 14 states that have bars against same-sex marriage. When Loving v. Virgina was decided, there were 16 states with anti-miscegenation laws in effect. Thus, we are closer to nationally recognized SSM rights now than we were to nationally recognized inter-racial marriage in 1967. By that measure, it’s time for SCOTUS to act.

    Loving v. Virginia was a unanimous decision. With this case we don’t have a comfortable majority; nor is the current court as liberal as the Warren court of that era. We’re instead relying on one justice. Therefore the two cases are not analogous in terms of the ideological make-up deciding the respective cases.

  • whheydt

    Re: Michael Heath @ #20…

    I will grant you that the this court is far more fractured along ideological lines than was the case in 1967. I agree that I would have been a lot happier if the 6th Circuit hadn’t decided the way it did (which, as I noted, the dissenting judge felt was a deliberate attempt to force SCOTUS hand…and that has worked, though to what end, we do not yet know).

    Still, the argument that SCOTUS making a decision is premature is–I think–in error, and by the time a decision is announced, the tally may be even more in favor of marriage equality if the questions from the bench in the 5th Circuit that have been reported are any indication.

    I personally think that it is more likely that Roberts is more scared of being “on the wrong side of history” than he is of a decision that will roil politics for decades to come. And, indeed, he should be. The example from Mass. is at least somewhat telling. At the first opportunity after SSM went in, the legislature voted for a state constitutional amendment to reverse the court’s decision. A year later, at the required second vote, they couldn’t get enough votes to pass it again, and the effort died. Once states get SSM, after a couple of years, there is probably no going back…with a few extremist exceptions, of course. (After all…look out the people who are still willing to re-fight the CIvil War…)

  • samgardner

    I have a sneaking suspicion that what they might try to do is make a ruling “favorable” to gay marriage, but do it in such a way that it gives states greater rights — that in dicta they’ll carve out what discrimination the states ARE allowed.

    I am not optimistic about anything this court does, to be honest, even though there are commenters on worldnet daily who consider them “liberal lapdogs”. 😀

  • eric

    6-3 is my prediction, with Roberts flopping.

    Though the first question has me a bit worried, because it is phrased in a way to give a “no” answer. No, the constitution does not require that the states grant marriage licences to gays. They only have to do it if they grant marriage licences to straight couples, because of the guarantee of equal rights. So the justices served up a softball to the anti-SSM side, which is a bit worrisome. No doubt Scalia, Alito, and Thomas will spend a lot of time banging on the points that (1) there is nothing in the Constitution specifically about marriage, (2) or how the states can regulate it, and (3) the considerable variation in marriage regulation by state has never been considered a constitutional matter before.

  • gshelley

    I wouldn’t want to predict, but I think 5-4 for marriage is most likely, followed by 5-4 against equality, then 6-3 for marriage and 7-2 for marriage.

    I don’t think any other results are even remotely likely

  • gshelley

    As there is no edit function..

    Is it possible they would find a state can ban SSM in it’s own borders, but is obligated to recognise marriages from other states?

    That would preserve the “states rights” part which Kennedy seemed concerned about, but also give people the opportunity to get married

  • whheydt

    Re: gshelley @ #25…

    That’s the “split the baby” point I made. Tell the states that they may ban SSM, but they have to recognize SSM legally granted in other states.

    As it happens, that would create an interesting precedent since, so far as I know, there are some examples (involving age and consanguinity) where one state will license a marriage and another state will–should the couple move–refuse to accept that marriage if it comes to that state’s attention. A “you *must* recognize (SS) marriages from out of state” decision could be used to try to overturn any other situation where a state refuses to accept a marriage that was legal in another state.

    One wonders if the justices will consider such a can of worms if they decide this way, or if they will look at that scenario and decide that the “split the baby” route has too many future ramifications and just declare that SSM is required under the Constitution and have done.

  • malta

    Though the first question has me a bit worried, because it is phrased in a way to give a “no” answer. No, the constitution does not require that the states grant marriage licences to gays. They only have to do it if they grant marriage licences to straight couples, because of the guarantee of equal rights.

    I understand your point, but I think the fact that all of the states involved license some marriages is already built into the question. The specific question is “Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?”

    I see that wording as recognizing that the states already grant licenses for other marriages. And somehow I can’t imagine a state making the argument you suggest, because the state would immediately have to pretend that they’re going to stop issuing marriage licenses altogether. That said, it would be sort of fun to nullify all of the straight marriages in a state to show them what it feels like to have the state refuse to recognize their relationships. Ah, schadenfreude.

  • vereverum

    re whheydt #10

    The solution for a state that really, really doesn’t want same-sex marriages is to drop licensing marriages at all, and to decline to recognize *any* out of state marriage. …so–while some few extremist pols may talk about it–no real action in that direction will occur.

    Just a gut feeling, i.e. no evidence or articulable reasoning, but I think that OK, LA, MS, and KY, (and possibly TX) have a better than 50% chance of at least trying this route.

  • whheydt

    Re: vereverum @ #28…

    I think the chance of that happening is at least 2 to 3 orders of magnitude lower. How many people–particularly conservative and/or religious people would revolt if that were actually tried? Can you imagine some politician trying to explain to people that their “marriages” were going to be made meaningless to the state, eliminating all state laws that give benefits to married couples? That they would have to make explicit (and likely expensive) arrangements for things like inheritance by spouses or to have the authority to make medical decisions for their spouse? Or even to have an automatic right to visit their spouse in a hospital?

    In other words, the straight couples would have to jump through all the legal hoops that same-sex couples have had to go through to get what are considered the “normal” perks of being married?

    In addition to that, there are the tax ramifications. No more joint filing…for either state or the Feds.

    No…I don’t think there is any chance at all that such a plan would make it through a state legislature, no matter what sort of crazies are there, nor do I think a governor would sign such legislation. Of course, it would probably take a state constitutional amendment to make it happen and that might require a popular vote. It’s almost certain that somebody would realize the consequences and the idea would go down in flames.

  • vereverum

    @ whheydt #29

    I agree with what you say. I didn’t consider a demarrying the current crop. I was envisioning a “from now on” situation where licenses would no longer be issued but those already married are grandfathered in. Same with other state marriages i.e. if married before the great abomination you’re welcome here. Oklahoma has Sally Kern and I read that Texas came very close to the required number of signatures on their secession petition.

    I was looking at a “moral panic” situation getting out of hand. But, alas, I fear you are right and times aren’t going to be nearly as exciting as they could’ve been. Though the introduction of a bill wouldn’t surprise me.

  • gshelley

    On recognition of marriages that could not be performed in the state

    http://en.wikipedia.org/wiki/Cousin_marriage_law_in_the_United_States_by_state

    The table is a little hard to read, but cousin marriage is illegal in around 30 states, and in 16 of these, they will recognise it from another state (with several having exceptions so that residents can’t marry in another state) and only 3 not recognizing it.

    I know it came up in one of the earlier cases – possibly Ohio, but I can’t remember how they defended their double standard. Probably in the same way Indiana and Utah (IIRC) tried to get around their “marriage is about procreation” when they have laws that first cousins can marry if they prove they can’t have children.

    I’d imagine recognition of underage marriage is similar, though with far more non recognition, due to the statuatory rape element.