The U.S. Supreme Court had shown little eagerness to jump into the contentious debate on whether the Constitution permits states to limit marriage to different-sex couples. So why is the court agreeing to hear the issue this term after dodging it before?
The national landscape has changed dramatically over the past 18 months since the court last weighed in on same-sex marriage rights. In June 2013, only 12 states permitted persons of the same sex to marry, covering about 20 percent of the country’s population. Now, through a combination of state voter initiatives, state legislative actions and federal and state court decisions, 36 states and the nation’s capital permit same-sex couples to wed, covering a whopping 70 percent of the country’s inhabitants.
Also, the federal Circuit Courts of Appeals are divided on the issue. Five have weighed in on whether the Constitution requires states to permit same-sex marriages, with others having the issue currently before them. Four, including the U.S. 9th Circuit Court of Appeals, of which California is part, ruled in favor of the right of same-sex couples to marry. But last November, the U.S. 6th Circuit Court of Appeals came to a different conclusion, overruling the trial judges in the four cases before it.
This created a split in the federal appeals courts, and it is when such a split exists that the Supreme Court is most likely to agree to take up an issue. Sometime this spring, probably in late April, the Supreme Court will consider the four marriage cases from the 6th Circuit, which covers Kentucky, Michigan, Ohio and Tennessee.
The Supreme Court specified two issues that it will consider in reviewing these cases. The first question is whether the 14th Amendment to the U.S. Constitution requires a state “to license a marriage between two people of the same sex.” The second is whether that same constitutional provision requires “a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state.”
These two questions are interconnected – a positive answer to the first negates the relevance of the second. If every state must permit same-sex marriage, these marriages would be recognized by all states.
Should the court decide there is no constitutional right allowing same-sex couples to marry, or should they choose to dodge the issue, it could get to the same place by finding that states are required to recognize same-sex unions preformed in other states. This would create a burden on same-sex couples who want to marry as these couples would have to travel to a state that permits same-sex couples to wed. But, once they did so, these marriages would have to be recognized as valid when they returned to the states where they live.
If this sounds confusing, that’s nothing compared to what happens if the court finds against same-sex couples on both questions. The Supreme Court earlier this term refused to stay several of the lower federal court opinions that permitted same-sex couples to wed. The Supreme Court, thus, has allowed hundreds of same-sex couples to marry.
Does the Supreme Court really want to create the situation where there is a limited class of same-sex married couples in these states? Will the Supreme Court want to permit these states to go back to refusing same-sex unions after it permitted them to go forward? Further, will the court choose to create the situation where a couple is legally married until they cross the border into a neighboring state?
The Supreme Court’s resolution of the issue is far from certain. That said, much of the nation’s attitudes have changed in the 18 months since the court invalidated California’s Proposition 8 and part of the federal Defense of Marriage Act.
By buying time with those two limited decisions, the court avoided getting ahead of much of the country. In light of these developments, combined with what is now majority support for marriage equality, gays and lesbians may well have the right to marry the person they love anywhere in the country sometime this summer.
Lawrence C. Levine is a law
professor at the University of the Pacific, McGeorge School of Law.