There are actually two questions the court is now looking at in this single case. The first is whether the U.S. Constitution requires states to allow same-sex marriages under the Equal Protection Clause, or if it should be left up to individual states. This is similar to the way states regulate age and the degree of blood relations for prospective couples. Section 1 of the Fourteenth Amendment reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The second question is whether states can prohibit same-sex marriages, yet be required to recognize same-sex marriages that legally took place somewhere else under the Full Faith and Credit Clause. Article IV, Section 1 reads
Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.
Generally, a marriage performed in one state has been recognized in all fifty states, unless that specific union has been outlawed in another state. Up until the mid-1960’s a number of states still banned interracial marriage, and those states did not recognize interracial marriages performed in states where it was legal. The full faith and credit clause was never used to force a state to recognize a marriage that it did not wish to recognize, such as an interracial marriage. However, this question will only be decided if SCOTUS rules that states may, in fact, ban same sex marriages.
Background on the cases
Obergefell v. Hodges isn’t just one case, it’s four cases that have been consolidated into one.
April DeBoer and Jayne Rowse live in Michigan where they own a home together and have three children. Because they are not allowed to marry and jointly adopt their children, DeBoer adopted one child and Rowse adopted the other two. This creates challenges in providing health insurance coverage for all three children and custody of the children if one partner should die.
James Obergefell married John Arthur in Maryland, a state that allows same-sex marriage. A few months later Arthur died. Obergefell filed a lawsuit in Ohio, where the couple lived, to be listed as Arthur’s spouse. Because same-sex marriage is banned in Ohio, the state refuses to list Obergefell as Arthur’s spouse on the death certificate.
Sergeant First Class Ijpe DeKoe married Thomas Kostura in New York, where Kostura was living. New York permits same-sex marriage. After Sgt. DeKoe returned from deployment to Afghanistan, the couple relocated to Tennessee, where DeKoe’s new duty station was located. Tennessee refuses to recognize the couple’s marriage.
Gregory Bourke and Michael Deleon were married in Ontario, Canada. The couple and their two adopted children live in Kentucky, where same-sex marriage is illegal. The couple is arguing that Kentucky should recognize same-sex marriages from other jurisdictions.
Where the Justices appear to stand
Justices Samuel Alito and Antonin Scalia threw out tough questions to the attorney representing the same-sex couples. They also seemed open to the idea that states should continue to be able to regulate marriage. Justice Thomas, as usual, was silent during the oral arguments, but he is expected to rule in favor of allowing states to continue to regulate same-sex marriage and against forcing states to recognize same-sex marriages performed in other states where it is legal.
Justices Breyer, Ginsburg, Kagan, and Sotomayor pushed back strongly against the idea that marriage should be limited to opposite-sex couples, because marriage is centered around having children and encouraging parents to stay married to care for their children.
Justice Kennedy appears to be, once again, a swing vote and there isn’t consensus on which way he will rule. If he sides with the four liberal Justices and rules that same-sex marriage bans are unconstitutional, everything is cut and dry. If he’s either undecided or leans more toward the three conservative Justices, Chief Justice Roberts may try to broker a compromise.
Chief Justice John Roberts appeared concerned that the court, by issuing a decision that changes the status quo, would prematurely shut down societal debates on this issue. He also noted that marriage has been commonly defined as a union between a man and women up until just “just a dozen years ago.” Yet Roberts is known as a compromiser and appeared to already be proposing a deal between the liberal and conservative wings of the court. Leave the question of gay marriage up to each state, but force states to recognize a same-sex marriage performed in other states where it is legal. This would, effectively, make same-sex marriage legal in all 50 states without eroding each state’s right to regulate marriage laws as their citizens’ see fit.
SCOTUS is expected to issue their ruling on this case in late June.