The Supreme Court of the United States (SCOTUS) heard two and a half hours of oral arguments Tuesday in a case called Obergefell v. Hodges, which considers if all fifty states must allow same-sex marriages, or recognize such marriages when they legally take place in another state. The case includes more than 20 plaintiffs from four different states.
![Priestess signing legal documentation for a same-sex married couple in Alabama [Courtesy K. Privett-Duren]](https://wildhunt.org/wp-content/uploads/2015/04/Screen-Shot-2015-02-11-at-2.00.28-PM-500x292.png)
Priestess signing legal documentation for a same-sex married couple in Alabama [Courtesy K. Privett-Duren]
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.
Human Rights Campaign symbol for marriage equality
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.
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I expect the outcome to be the compromise described in the final paragraph, with Ruth Bader Ginsberg voting on the side of compromise to the surprise of many. She is a consistent liberal vote but has more than once made remarks to the effect that the Roe v. Wade decision may have “prematurely shut down societal debates” on making abortion legal and widely available, at a time when the tide of public opinion and the law favored widening access. An unintended outcome of Roe was that abortion is legal today in every state but increasingly difficult to obtain in large swaths of the country, far more difficult that it was thirty years ago.
The court decision in Roe had a more polarizing effect than the many legislative and lower court decisions that preceded it. It gave social conservatives a rallying point and they have made it much more difficult to get any government support to give poor women access to any form of birth control in the US or foreign countries. This is in no way the fault of gay people who want to get married in their home state, but it is a cautionary tale.
The Court’s decisions in controversial cases are probably colored by the knowledge that SCOTUS has no means to enforce its decisions. The other two branches of government take care of that. When a significant part of the electorate is enraged by a single decision of the court, it undermines social support for the court in general. Sometimes (as in the case of Brown v. Board of Education), simple justice or the survival of the nation require the Court to go ahead with an uncompromising decision. Other times a piecemeal approach will accomplish the same purpose. I think this is one of those situations.
Religious conservatives hold the courts to be a completely illegitimate branch of government, whenever rulings don’t go their way – which is increasingly often in recent years. Many of them are saying they won’t obey any ruling that goes against them on gay marriage, and some have hinted about armed insurrection. There is nothing to be gained by appeasing people like that. I struggle with the idea that it would prematurely cut off the social debate. The real thunder of the gay marriage debate in this country is recent, but the issue has been on the table for 25 years since the Nordic countries started recognizing civil unions. The overarching gay rights debate has been going on in this country since Stonewall 46 years ago.
Let’s talk about the procreation issue.
The 9th U.S. Circuit Court of Appeals said, unanimously, “A man and a woman who have been convicted of abusing their children are allowed to marry; same-sex partners who have been adjudicated to be fit parents in an adoption proceeding are not.”
From http://www.religionnews.com/2015/04/20/5-arguments-watch-supreme-court-considers-gay-marriage/
Thus did Sutton base part of his reasoning in the 6th Circuit gay marriage case on tradition. “From the founding of the republic to 2003, every state defined marriage as a relationship between a man and a woman,” he wrote.
….
But other appeals court judges reasoned that if history and tradition were a guide, the Supreme Court would not have reversed common practice in 1967 and struck down state bans on interracial marriage in the landmark case Loving v. Virginia.
“To claim that marriage, by definition, excludes certain couples is simply to insist that those couples may not marry because they have historically been denied the right to do so,” the 10th Circuit majority wrote in the Utah case. “One might just as easily have argued that interracial couples are by definition excluded from the institution of marriage.”
Posner, in the unanimous 7th Circuit case, said tradition cannot be grounds for discrimination no matter how long a practice has been in effect.
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http://www.nytimes.com/2015/04/29/us/supreme-court-same-sex-marriage.html?_r=0
1) After a short pause in the arguments, Solicitor General Donald B. Verrilli Jr., the Obama administration’s top appellate lawyer, argued in support of the couples. “Gay and lesbian people are equal,” he said. “They deserve equal protection of the laws, and they deserve it now.”
He was followed by the lawyer defending the same-sex marriage bans, John J. Bursch, who said they were for the benefit of children and not couples seeking companionship and mutual support.
“The state doesn’t have an interest in love and emotion at all,” Mr. Bursch said. “It’s about binding children to their biological moms and dads.”
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amf: Mr. Bursch has a couple of facts wrong, although the first one, could be a transcription error, leaving out a “not” in front of “Couples seeking companionship and mutual support”. Erm, heterosexuals unable to procreate due to age or infirmity are routinely able to marry.
Second, binding children to their *biological* moms and dads–ideally, perhaps, but what about adopted children whose parents failed to bind to the children and disregarded, if not abused or abrogated, their duties toward said children? Those “parents” could stay married, or marry other people, without concern for their lacks as parents or effects on their future children–but they could also not marry and procreate, too.
2) “All of the incentives, all of the benefits that marriage affords, would still be available,” Justice Ruth Bader Ginsburg told him. “So you’re not taking away anything from heterosexual couples. They would have the very same incentive to marry, all the benefits that come with marriage that they do now.”Continue reading the main storyGraphic: Gay Marriage State by State: A Trickle Became a Torrent
Justice Sonia Sotomayor made a similar point. “How does withholding marriage from one group — same-sex couples — increase the value to the other group?” she asked.
If the purpose of marriage is procreation, Justice Ginsburg asked, why are two 70-year-olds allowed to marry? Mr. Bursch said the male member of the couple was “still capable of having children, and you’d like to keep that within the marriage.”
…
Justice Elena Kagan said allowing same-sex marriage would benefit children. “More adopted children and more marital households, whether same-sex or other-sex, seems to be a good thing,” she said.
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amf: As always, the Notorious RBG gets to the flaw in the argument, and Mr. Bursch missed it. If TWO 70-year-olds are allowed to get married, and the male member of the couple was still capable of procreation, you cannot “keep that within the marriage”, because the woman who married the guy is unable to bear a child, even if her name is Sarah or Miriam ibn Joachim, these days. The medical establishment frowns on women past 50 trying for infertility treatments, even though some women have lied about their ages. Hope they could afford full-time help…
My belief is that if two hets, no matter their consequences, ages, or opinions WRT procreation can marry, then procreation is not a valid reason to deny equal rites and rights WRT marriage.