The US Supreme court has scheduled April 28, 2015 for the oral arguments on the cases it agreed to hear where the US Sixth Circuit Court of Appeals upheld bans on same-sex marriage. The ruling is likely to come in June. While it ponders this issue, the attitudes of the public are changing rapidly. A new poll finds that now 56% of the public favors it, up from 48% just three years ago and from a mere 11% in 1988. This is an astonishing rate of change. Even more than 300 Republican lawmakers, some high-profile ones, have signed a brief for the Supreme Court supporting same-sex marriage. It seems like even if the court rules that states can ban same-sex marriages, it is only a matter of time before those bans too will be reversed, except in the most bigoted of states. Yes, Alabama, I am looking at you.
I personally think the court will overturn these bans. The court is sensitive to how it sees its reputation and to be on the losing end of such a landmark issue will be troubling, evoking comparisons with the Dred Scott and Plessey v. Ferguson cases, lasting embarrassments for the court.
Same-sex marriages are currently legal in 37 states. I suspect that more and more states will begin to allow it and only a few like Alabama will fight to the end. Right now theAlabam state Supreme Court has issued a direct challenge to the supremacy clause by saying the state’s probate judges, the ones that issue marriage licenses, do not have to follow a US District Court judge’s order to issue them, the first time that such a challenge has been made.
Alabama’s defiance of a federal order on gay marriage within its own state is new, said Carl Tobias, a professor at the University of Richmond School of Law who has followed the issue. “That hasn’t happened anywhere else,” said
For example, Tobias said, state judges in Arkansas and Kansas seemed to defer to the federal rulings rather than setting up a conflict between the two systems.
“The Alabama Supreme Court threw down the gauntlet this week and has challenged the lower federal courts to make their same-sex marriage rulings stick,” said University of Alabama Law School Professor Ron Krotoszynski.
Krotoszynski questioned what would have happened in the civil rights movement in the 1960s if Alabama state courts had issued orders to disregard lower federal court orders on integration of schools, parks, or other facilities.
This whole issue of state and federal court conflict created by Alabama may become moot if the US Supreme Court rules that such bans are unconstitutional. If they don’t and they uphold a state’s right to ban such marriages, then such marriages will become illegal in many of the 37 of the states where marriage is currently legal, because legality was obtained by courts overturning legislative acts and referenda. This will be a result in a major mess.
It is not clear if the Supreme Court will be swayed by the prospect of the widespread confusion that will ensue if it upholds the bans. I suspect some justices (Scalia, Thomas, and Alito) will feel that it not their job to clean up the messes made by others and that their commitment to the idea that states can decide what constitutes marriage trumps the idea of equal protections in the US constitution.
Even if the Supreme Court rules against same-sex marriage, I fully expect it to become legal practically everywhere pretty soon. The tide is flowing strongly that way and the Supreme Court cannot turn it back. The question is whether they want to even try.