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to Section One | to Arts & Entertainment
posted Friday, January 16, 2015 - Volume 43 Issue 03
Waiting for SCOTUS - Marriage cases in limbo till high court rules
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Waiting for SCOTUS - Marriage cases in limbo till high court rules

by Mike Andrew - SGN Staff Writer

Pending litigation on the rights of Gay and Lesbian couples to marry has been put on hold after the U.S. Supreme Court's January 16 announcement that it will hear appeals from same-sex couples in four states under the Sixth Circuit Court's jurisdiction. [NOTE: SCOTUS is an acronym for the Supreme Court of the United States.]

Bucking the national trend, the Sixth Circuit ruled in November that same-sex couples do not have a right to marry. Since other circuit courts had ruled in favor of marriage equality, hearing the appeals from the Sixth Circuit - and settling the issue once and for all - was a logical step for the high court.

'We are now that much closer to being fully recognized as a family, and we are thrilled,' plaintiff April DeBoer said. 'This opportunity for our case to be heard by the Supreme Court gives us and families like ours so much reason to be hopeful.'

Nevertheless, the Supreme Court's intervention means that other marriage cases will be put on hold until the court issues its ruling, expected no sooner than the end of June.

A U.S. District Judge in North Dakota, for example, suspended his consideration of a case pending since last September.

In Georgia and Missouri, lawyers for the respective states asked federal courts to suspend pending marriage cases until the Supreme Court rules. The ACLU filed its opposition to the Missouri request, and same-sex marriages continue in St. Louis County. Those marriages are recognized statewide.

The Fifth Circuit Court of Appeals has already held hearings on cases from Texas, Louisiana, and Mississippi, but has not said whether it will issue its own ruling or wait for the Supreme Court to act.

The Mississippi state Supreme Court has heard arguments in a same-sex divorce case - which would require the state to recognize the validity of a same-sex marriage concluded in another jurisdiction - but also has not said if it will wait for the high court.

In the meantime, observers have been spinning all kinds of theories - some cogent, some outlandish - about what the Supreme Court will do and what it will mean when they do it.

What does SCOTUS want to know?
The Supreme Court itself may have contributed to the speculation by the way it phrased the questions it will ask lawyers when it hears the appeals in April:

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?

UC-Irvine law professor Rick Hasen, for example, found the first question 'odd' because it ignores the fundamental issue raised in the court cases - namely whether Gay and Lesbian couples have a 'fundamental right' to be married - and focuses instead on state powers and obligations.

The same problem worried openly Gay Washington Post pundit Jonathan Capehart.

'State' was what set off alarms for me,' Capehart wrote.

'States have the power to regulate who can and cannot marry. That's one of the reasons why the so-called Defense of Marriage Act (DOMA) was so odious. Aside from being discriminatory, the federal legislation trampled on a state's right to determine whether a same-sex couple could marry. Now the court is asking whether the Constitution requires a state to do so.'

Freedom to Marry CEO Evan Wolfson came to Capehart's rescue, explaining that 'The bottom line answer to your question is that while states regulate marriage, they do so under the Constitution. There is a floor below which the states may not go, and that floor is the Constitution's guarantee of the freedom to marry and equal protection under the law.'

The Fourteenth Amendment
In Supreme Court Justice Anthony Kennedy's groundbreaking majority opinion in USA v. Windsor, striking down DOMA, he found that DOMA violated both a state's right to regulate marriage and same-sex couples' right to be married.

In the part of Kennedy's opinion usually cited by subsequent federal court rulings in favor of marriage equality, he wrote that DOMA violated the Fifth Amendment due process and equal protection rights of same-sex couples. Kennedy cited the Fifth Amendment because that one says what the federal government may or may not do and DOMA was a federal law.

But this is where the Fourteenth Amendment comes in! The Fourteenth Amendment says what states may or may not do.

Most legal scholars believe that the Fourteenth Amendment 'federalizes' the Bill of Rights. In other words, the Fourteenth Amendment says that whatever the federal government is prohibited from doing to citizens, the states are also prohibited from doing.

To apply this to the marriage issue - if the federal government may not violate the equal protection and due process rights of same-sex couples, the states may not do it either. This argument is the basis for the string of federal court decisions overturning state bans on same-sex marriage.

But in the view of conservative justices like Antonin Scalia, all amendments are not created equal. Scalia has always argued for a very restrictive interpretation of the Fourteenth Amendment and some observers see the 'odd' wording of the Supreme Court's questions as a way of setting up a very narrow ruling on the issue of marriage equality.

Scenarios
One possible scenario has the court ruling that states must recognize legal same-sex marriages, but may opt out of performing them in their own jurisdictions. That would explain why the justices framed Question 2 in the way they did.

While Justice Kennedy is known to be a friend of LGBT rights, he is also known to be a supporter of states' rights. Would he line up with the court's conservative justices to limit marriage equality in this way?

Another possible scenario has the high court ruling in favor of marriage equality, but only because laws banning same-sex marriage are not rational. In this scenario, the court would uphold equality on the very narrowest grounds, and avoid saying that discrimination on the basis of sexual orientation should be subject to 'heightened scrutiny' - as many of the lower court decisions said.

Conservatives see 'heightened scrutiny' as a danger, because it establishes LGBT people as a protected class in federal law and expands the scope of federal civil rights laws. It also creates a precedent that could be applied to future employment discrimination rulings against business owners.

Chief Justice Roberts joined with the court's liberal justices to uphold the Affordable Care Act, but he concocted a theory of the case that limited the interstate commerce clause in a way that could undermine federal civil rights laws. Would he line up with the court's liberals on this issue, but write a similar 'poison pill' ruling limiting the application of the Fourteenth Amendment?

Right wing prepares for the worst
Even with all the speculation, right wing opponents of equality are preparing for the worst. Former Arkansas Governor and current Republican presidential aspirant Mike Huckabee even raised the possibility of nullification. States, he said, should simply refuse to comply with a Supreme Court ruling in favor of equality.

Others took a longer view. Family Research Council spokesperson Chris Gacek predicted that support for equality could be reversed over time.

'You're going to get sort of the equivalent of a Roe v. Wade - opposition to it built over time,' Gacek said.

'If you get a ruling that doesn't allow the democratic process to work, I think you are going to have a problem in the long term, but people are not just going to be running to Iowa or something to raise it in the presidential race,' he said.

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