SHAFAQNA (International Shia News Association) The Supreme Court on Friday agreed to decide whether all 50 states must allow gay and lesbian couples to marry. The court’s announcement made it likely that it would resolve one of the great civil rights questions of the age before its current term ends in June.
The justices ducked the issue in October, refusing to hear appeals from rulings allowingsame-sex marriage in five states. That surprise action delivered a tacit victory for gay rights, immediately expanding the number of states with same-sex marriage to 24 from 19, along with the District of Columbia.
Largely as a consequence of the Supreme Court’s failure to act in October, the number of states allowing same-sex marriage has since grown to 36, and more than 70 percent of Americans live in places where gay couples can marry.
The pace of change on same-sex marriage, in both popular opinion and in the courts, has no parallel in the nation’s history.
Based on the court’s failure to act in October and its last three major gay rights rulings, most observers expect the court to establish a nationwide constitutional right to same-sex marriage. But the court also has a history of caution in this area.
It agreed once before to hear a constitutional challenge to a same-sex marriage ban, in 2012 in a case called Hollingsworth v. Perry that involved California’s Proposition 8. At the time, nine states and the District of Columbia allowed same-sex couples to marry.
When the court’s ruling arrived in June 2013, the justices ducked, with a majority saying that the case was not properly before them, and none of them expressing a view on the ultimate question of whether the Constitution requires states to allow same-sex marriage.
But a second decision the same day, in United States v. Windsor, provided the movement for same-sex marriage with what turned out to be a powerful tailwind. The decision struck down the part of the Defense of Marriage Act that barred federal benefits for same-sex couples married in states that allowed such unions.
The Windsor decision was based partly on federalism grounds, with Justice Anthony M. Kennedy’s majority opinion stressing that state decisions on how to treat marriages deserved respect. But lower courts focused on other parts of his opinion, ones that emphasized the dignity of gay relationships and the harm that families of gay couples suffered from bans on same-sex marriage.
In a remarkable and largely unbroken line of more than 40 decisions, state and federal courts relied on the Windsor decision to rule in favor of same-sex marriage.
The most important exception was a decision in November from a divided three-judge panel of the United States Court of Appeals for the Sixth Circuit, in Cincinnati. Writing for the majority, Judge Jeffrey S. Sutton said that voters and legislators, not judges, should decide the issue.
That decision created a split among the federal appeals courts, a criterion that the Supreme Court often looks to in deciding whether to hear a case. That criterion had been missing in October.
The Sixth Circuit’s decision upheld bans on same-sex marriage in Kentucky, Michigan, Ohio and Tennessee. The Supreme Court agreed to hear petitions seeking review from plaintiffs challenging the bans in each of those states.
The court said it will hear two and a half hours of argument, probably in the last week of April. The first 90 minutes will be devoted to the question of whether the Constitution requires states “to license a marriage between two people of the same sex.”
The last hour will concern a question that will be moot if the answer to the first one is yes: whether states must “recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state.”
The court consolidated the four petitions before it, not all of which had addressed both questions.
The Ohio case, Obergefell v. Hodges, No. 14-556, for instance, concerns a state law that bars the recognition of out-of-state same-sex marriages. It was challenged by four same-sex couples raising children together, the adopted child of one of the couples and two widowers.
“Ohio does not contest the validity of their out-of-state marriages,” their brief seeking Supreme Court review said. “It simply refuses to recognize them.”
State officials had urged the justices to hear the case. “The present status quo is unsustainable,” they said. “The country deserves a nationwide answer to the question — one way or the other.”
They said the correct answer was to allow states “to resolve the delicate policy question in favor of traditional marriage.”
The Tennessee case, Tanco v. Haslam, No. 14-562, also concerns out-of-state marriages. It was brought by three married same-sex couples who moved to Tennessee, which refused to recognize their marriages. In their brief asking the Supreme Court to hear their case, they told the justices that “Tennessee’s refusal to recognize their legal marriages continually communicates to petitioners and other Tennesseans that the State regards petitioners and their families as second-class citizens.”
Gov. Bill Haslam, a Republican, took a different approach from those of officials in the other states whose cases the Supreme Court agreed to decide. He did what litigants who have won in the lower court typically do: He urged the justices to decline to hear the case.
The Michigan case, DeBoer v. Snyder, No. 14-571, was brought by April DeBoer and Jayne Rowse, two nurses in a committed relationship who are raising three children. They sued to challenge the state’s ban on same-sex marriage.
In urging the Supreme Court to hear their case, they asked the justices to do away with “the significant legal burdens and detriments imposed by denying marriage to same-sex couples, as well as the dignity and emotional well-being of the couples and any children they may have.”
Gov. Rick Snyder, a Republican, joined the plaintiffs in urging the Supreme Court to hear the case. But he said the Sixth Circuit’s decision upholding the state’s ban had been correct. He reminded the justices that they just last year upheld a Michigan voter initiative that banned race-conscious admissions at the state’s public universities.
Mr. Snyder’s brief quoted from Justice Kennedy’s opinion in the affirmative action case: “It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.”
The Kentucky case, Bourke v. Beshear, No. 14-574, was brought by two sets of plaintiffs. The first group included four same-sex couples who had married in other states and who sought recognition of their unions. The second group, two couples, sought the right to marry in Kentucky.
“Even those who have been validly married in other jurisdictions cannot enjoy the rights, responsibilities and privileges of married life that their heterosexual counterparts enjoy,” the plaintiffs told the justices in their petition seeking Supreme Court review. “In addition to these concrete deprivations, Kentucky’s marriage prohibition marks same-sex relationships and the families they create as less valuable and less worthy of respect than opposite-sex relationships.”
In his response in the Supreme Court, Gov. Steven L. Beshear, a Democrat, said he had a duty to enforce the state’s laws. But he agreed that the Supreme Court should settle the matter and “resolve the issues creating the legal chaos that has resulted since Windsor.”