SCOTUS Ruling

In 2004, I was a freshman in college about to vote in my first presidential election. I was so excited and felt so lucky: if I had been born just one year later, I would have had to wait until I was 22 to vote for a presidential candidate. On November 2^nd, I watched news coverage and checked online electoral map configurations with zeal. My enthusiasm soon wore off, once it became clear that my home state, Ohio, would not only hand George W. Bush his re-election (not my wish), but that we would also vote into place a ban on same-sex marriage. 

Same-sex marriage was a relatively new legislative concept. Massachusetts had become the first state to do it right just a few months earlier. In response, 10 other states banned the recognition of same-sex marriages the same night as Ohio. Over the next few years, state after state followed suit and it felt as if it could be a lifetime of waiting ahead of us. But the tide has changed and, in the past five years, we have seen a radical shift in terms of public opinion and legal standing. Currently, 37 states and the District of Columbia recognize same-sex marriages and the number feels as if it is growing at such a rapid pace, it is difficult to keep track.

The Supreme Court largely stayed out of the debate, until 2013 when the Court heard arguments for United States v. Windsor and declared a portion of the Defense of Marriage Act (DOMA) a violation of the Due Process clause of the U.S. Constitution, holding that the federal government cannot limit the definition of marriage to opposite-sex couples. While this decision did not make marriage equality a constitutional right, it did ensure that same-sex couples married in states that legally recognize their unions could not be denied federal marriage benefits.

Now, we’re gearing up for the next round of SCOTUS involvement. But what are they debating? In the midst of all the legalese and extreme political rhetoric, it can be difficult to figure out exactly what the potential outcomes are for this case. Here’s a breakdown of what is going on and what could be the result:

What is the case?
In July 2013, two Ohioans named John Arthur and James Obergefell filed a federal lawsuit to have their marriage legally recognized by the state. John and James had just married in Maryland, which had recognized same-sex marriages for approximately six months at the time, and wanted Ohio to acknowledge their union officially. While it is understandable that any couple would want this recognition, John and James had a pressing concern: John’s health was rapidly deteriorating as a result of ALS and wanted James to be listed as his surviving spouse on his death certificate.

Just a few days later, District Judge Timothy Black granted the couple a restraining order, which is not what it sounds like. The restraining order “restrained” the Ohio Registrar from acknowledging a death certificate for John unless it reflected his marriage, thereby requiring state officials to recognize a same-sex union.

Ohio Attorney General Mike DeWine appealed Judge Black’s decision to the Sixth Circuit Court of Appeals. Concurrently, the courts were also hearing three other cases about same-sex marriage. Bourke v. Beshear was a challenge to the Kentucky ban by Gregory Bourke and Michael Deleon, who wed in Canada in 2004 and had two teenage children. Tanco v. Haslam involved four Tennessee couples, three of whom wed in New York and one who wed in California, challenging their state’s ban. DeBoer v Snyder initially set to challenge Michigan’s ban on adoption by same-sex couples, but was amended to include the state’s ban on same-sex marriage. In these three cases, along with Obergefell v. Hodges, the Sixth Circuit ruled the state bans were constitutional.

In November 2014, after the Sixth Circuit ruling, the couples involved in these cases filed for certiorari (a writ seeking review by a higher court of a lower court’s ruling) with the U.S. Supreme Court. In January 2015, SCOTUS combined the four cases (and subsumed them under the Obergefell v. Hodges title) and agreed to hear a review of the Sixth Circuit ruling. The constitutional questions before SCOTUS are:

• Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
• 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?

In April 2015, oral arguments were heard and a ruling is expected sometime in late June.

That’s a lot.

I know.

How did the oral arguments go?
Weird. The court is mostly easy to read, with Antonin Scalia, Clarence Thomas, and Samuel Alito voting conservatively and Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, and Stephen Breyer voting progressively. Chief Justice John Roberts is usually to the right, but can be tricky. As usual, Anthony Kennedy is the swing vote. Based on their comments during oral arguments, it’s difficult to say exactly how either justice is leaning.

Justice Roberts seemed to have issue with the rapid pace of social change around the issue:

If you prevail here, there will be no more debate. I mean, closing of debate can close minds, and it will have a consequence on how this new institution is, is accepted.  People feel very differently about something if they have a chance to vote on it than if it’s imposed on them by the courts.

Kennedy struggled with the traditional definition of marriage:

I don’t even know how to count the decimals when we talk about millennia. This definition has been with us for millennia. And it’s very difficult for the court to say, ‘Oh, well, we know better.’ …  Same-sex couples say, of course: ‘We understand the nobility and the sacredness of the marriage. We know we can’t procreate but we want the other attributes of it in order to show that we, too, have a dignity that can be fulfilled.’ 

Clarence Thomas, as usual, said nothing.

What could happen?

What can be confusing about following any SCOTUS case is figuring out what comes after the ruling. The court must answer the two constitutional questions stated above. The court could decide in the affirmative on the first question and say that, yes, the Fourteenth Amendment requires that states provide marriage licenses to same-sex couples. If that happens, it’s not all confetti and wedding cakes right away. The state bans currently in place will need to be challenged in court. But this is the best case scenario and, if it happens, the second constitutional question is pretty moot.

The middle of the road SCOTUS response would be saying no to the first question and yes to the second. They could affirm that individual states are not required to provide same-sex marriage licenses, but that states are required to recognize out-of-state marriage licenses for same-sex couples. This wouldn’t be the victory many are hoping for, but it would make it much easier for same-sex couples throughout the country to seek legal recognition.

The other/worst option would be that states are neither required to issue their own marriage licenses to nor recognize out-of-state marriage licenses for same-sex couples. In this case, little would change, but precedent would be set. The thirteen states remaining without marriage equality would be able to continue on that path. Someday, they may face a ballot measure or legislative challenge that would pave the way for same-sex marriage, but this SCOTUS decision would not play a role.

So, what’s probably going to happen?

I have no idea. Truly, no one does. But some people are making predictions and those can be fun to read. Being from Cincinnati, I am lucky to know some of the Obergefell plaintiffs, including my former University of Cincinnati colleague Ethan Fletcher. Ethan explained his optimism about the decision:

…the Supreme Court had multiple opportunities to roadblock marriage equality up to this point, but didn’t. All of the Circuit Court rulings in favor of same sex marriage (SSM) were denied appeals to SCOTUS by their respective Attorneys General – even Alabama! And so, by doing nothing and choosing not to intervene in those cases, SCOTUS sent a powerful message that the rulings by the Circuit Courts in favor of SSM were in fact constitutional. Only when the 6th Circuit deviated and voted against SSM did it intervene. We would have seen this play out very differently with respect to the Circuit Courts if in fact SCOTUS was planning to vote against SSM.

Even though the outcome isn’t clear, what is obvious to many is that social change is taking place. As a college freshman watching voters play football with my legal rights, I was devastated to see how little so many of my fellow Americans thought of me and my community. In just over a decade later, a large majority of states have come to recognize same-sex marriages and the momentum feels unstoppable. I don’t know how SCOTUS will decide, but I know that marriage equality and the story of how it has unfolded in the U.S. is one of hope. Regardless of what happens in the courts, we will persevere.

References

Culhane, J. (2015, April 29). After Yesterday’s SCOTUS Arguments, Marriage Equality Isn’t Certain. What Will Happen if It Fails? Retrieved May 20, 2015, from http://www.slate.com/blogs/outward/2015/04/29/scotus_marriage_equality_what_will_happen_if_obergefell_v_hodges_fails.html

Litigation in Ohio | Freedom to Marry. (n.d.). Retrieved May 10, 2015, from http://www.freedomtomarry.org/litigation/entry/ohio

Obergefell v. Hodges. (n.d.). Retrieved May 10, 2015, from http://www.scotusblog.com/case-files/cases/obergefell-v-hodges/

Roberts, T., & Gibbons, S. (2014, November 3). Same-sex marriage bans winning on state ballots. Retrieved May 10, 2015, from http://www.cnn.com/2004/ALLPOLITICS/11/02/ballot.samesex.marriage/

SCOTUS Oral Arguments- April 28, 2015. (n.d.). Retrieved May 10, 2015, from http://www.supremecourt.gov/oral_arguments/argument_transcripts/14-556q1_6j36.pdf

SCOTUS Oral Arguments- April 28, 2015. (n.d.). Retrieved May 10, 2015, from http://www.supremecourt.gov/oral_arguments/argument_transcripts/14-556q2_1813.pdf

States | Freedom to Marry. (n.d.). Retrieved May 10, 2015, from http://www.freedomtomarry.org/states

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Angela Zippin is a Program Coordinator in the Testing Services Department at the University of Cincinnati where she received her Master of Arts in Women's, Gender, and Sexuality Studies. She also serves as on the UC's Student Affairs Diversity Steering Committee and as the Membership Chair for the Ohio College Testing Association. 

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