The U.S. Supreme Court today has decided it will take up four consolidated cases on same-sex marriage. According to the order it issued [pdf], the Court will consider only the following two questions:
1) Does the 14th Amendment require a state to license a marriage between two people of the same sex? 2) Does the 14th 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?
In other words, there’s LGBT history in the making.
In 2013, the Court decided in United States v. Windsor that the federal government had to recognize same-sex marriages, and thus lesbian and gay couples could receive the benefits accrued to all married couples. That decision, and the Court’s ruling against gay-marriage-banning Proposition 8 in California (Hollingsworth v. Perry), led to a domino effect of using the Court’s equal-protection reasoning to force states to allow same-sex marriage. Currently, 36 states and the District of Columbia have marriage equality.
However, same-sex marriage is not the law of the land, but a state-by-state privilege. And though many courts have upheld the right to same-sex marriage, federal courts in Louisiana, Puerto Rico and the four-state 6th Circuit have upheld bans against it. While the court declined to review other rulings, they have chosen the 6th Circuit states for this important test.
The coauthor of the 6th Circuit decision, Judge Jeffrey Sutton, wouldn’t compare the ban on same-sex marriage with the old ban on interracial marriage—as so many others have done—and instead insisted it was more democratic for voters rather than courts to “resolve new social issues.”
Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.
But Senior Judge Martha Craig Daughtrey went all Notorious R.B.G. in her dissent, writing that his opinion …
… would make an engrossing TED Talk or, possibly, an introductory lecture in political philosophy. … If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.
The Michigan case that the Supreme Court will hear involves a female couple who want to marry and jointly adopt each other’s children. The Ohio case involves several same-sex couples (and two partners of deceased spouses) who married in other states but want their marriages recognized in their home state. The Kentucky case has been filed by four couples who were married in other states and two couples who want to marry in the Bluegrass State. And the three Tennessee plaintiff couples were married in other states.
Will Justice Anthony Kennedy once again join the four liberals on the court and support same-sex marriage? Or will he revert back to the conservative side of the argument? How do you think the court will rule?
Photo of Gay Liberation monument (by sculptor George Segal) in Greenwich Village from Flickr user Ted Eytan, under license from Creative Commons 2.0
