In a case that is likely to end the debate over gay marriage (at least in the political realm) once and for all in the U.S., the Supreme Court announced today that it will hear a case that will decide whether all 50 U.S. states must allow same-sex couples to marry. As a result and due to the fact that this will likely be one of the Supreme Court’s most-watched decisions of 2015, I have decided to create a short, four part blog series on the case as it leads up to June. Today, in Part I, I will briefly cover a bit of judicial history on this issue, the petitions for cert. that the Court accepted, and the interest choice of language the Justices set out in framing the issue that will be before the Court. Part II will come in early March and will examine the briefs for both the petitioners and the respondents and break down the arguments on both sides after they have been filed with the Court. Part III will cover the oral argument (yet to be scheduled). Finally, Part IV will be a (likely very long) post breaking down the Supreme Court’s decision which is expected to arrive in late June.
I’m sure this will be a very fun adventure to follow this historical case as it makes its way through the Supreme Court and I hope that the analysis I provide on the issue can help illuminate the process.
Accepting the Petition at Last
The issue of gay marriage has been a long time coming to the Supreme Court and is undoubtedly the only example in history of a social issue changing so dramatically, so quickly, largely due to the aid of the judicial system. In 2013, followers of the Supreme Court thought there may be a chance that they could tackle the issues of gay marriage in the cases United States v. Windsor and Hollingsworth v. Perry. Windsor was a case that had to do with a New York woman, the widowed spouse of a same-sex marriage recognized by her state, who was unable to benefit from the same federal estate tax exemptions that protect the surviving spouses of heterosexual couples. Hollingsworth, on the other hand, was a case directly challenging the constitutionality of state-enacted same-sex marriage bans. While the Court did decide the case in Windsor, ruling that the federal Defense of Marriage Act violated the Fifth Amendment by unfairly discriminating against couples whose unions were recognized by their respective states (largely an issue of federalism that had no bearing on the constitutionality of statewide bans), it dismissed the Hollingsworth case based on issues of standing. Thus, the Court was effectively able to duck the issue in the first go around.
However, the Windsor decision ended up becoming hugely influential in the fight against same-sex marriage bans. Shortly after the Court handed down its decision—and Justice Scalia warned that the decision would open the floodgates for lower courts to “reach the same conclusion with regard to state laws denying same-sex couples marital status”—a plethora of federal court cases challenging same-sex marriage bans began to make their way through the judiciary. Largely citing the Court’s decision in Windsor, federal courts invalidated same-sex marriage bans in 36 states with appeals courts in the 4th, 7th, 9th, 10th, and 11th Circuits all upholding the decisions. Today, over 70 percent of Americans now live in a location where these same-sex marriage bans have been struck down and can now begin same-sex marriages.
This brings us to today. Earlier in the Supreme Court’s October 2014 term, the Justices refused to hear appeals from the above Appellate courts and let stand their decisions. However, in November, the 6th Circuit Court of Appeals broke the chain of appellate decisions striking down these same-sex marriage bans and, instead, decided to uphold the bans in Kentucky, Michigan, Ohio, and Tennessee. This created a circuit split and is likely the reason that the Justices have now decided to hear the case in an effort to resolve this discrepancy.
Framing the Issue
One interesting point to note about the Supreme Court’s certiorari grant in this case is that they chose interesting language in framing the legal questions at issue. All cases before the Supreme Court—or any appellate court—has a central legal question that the court resolves to answer. Most of the time, these questions come from the briefs of the petitioners and respondents and aren’t modified too heavily by the Justices. However, in this case, the wording of the legal question was chosen as such:
The cases are consolidated and the petitions for writs of certiorari are granted limited to the following 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? A total of ninety minutes is allotted for oral argument on Question 1. A total of one hour is allotted for oral argument on Question 2. The parties are limited to filing briefs on the merits and presenting oral argument on the questions presented in their respective petitions
The wording certainly is odd. Richard L. Hasen of the University of California, Irvine Law School noted on his blog that the new wording reframes the question away from the rights of same-sex couples to marry and, rather, focuses on the rights of states to refuse to recognize such marriages. On the surface, this appears to put the onus of proof that same-sex marriages are unequivocally protected by the 14th Amendment on the side of same-sex marriage advocates. However, the wording could also stem from an attempt by the Justices—very likely the Chief Justice—to rule as narrowly as possible on the issue and even to sidestep a ruling that would provide heightened scrutiny for discrimination based on sexual orientation.
There are more innocuous reasons for the new wording as well. The cert. grant in this case consolidated cases from Kentucky, Michigan, Ohio and Tennessee and may have simply used a more precise, albeit odd wording to limit the petitioners and respondents to only these two questions.
As a matter of personal opinion, I hope that the Supreme Court does not opt to rule narrowly in such a case. I believe that the American people have made it clear that there is no feasible reason why a final decision on the same-sex marriage issue should be postponed. The legal ground has been thoroughly sown the Court cannot risk creating any more confusion about the legal status of same-sex couples and their unions which have now promulgated throughout the country at a rapid rate. We live in fast times of social change and it would not hurt to have the Court finally affirm that discrimination of any kind based on sexual orientation, including but not limited to marriage equality, is unacceptable.
Up next: We’ll talk about the briefs from the petitioners and respondents in this case once they arrive at the Court in early March!