Same-sex marriage denouement coming soon

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.


  1. DonDueed says

    I wonder if the court might try to compromise by ruling that states can ban SSM but must honor such marriages performed in other states. That would de facto legalize SSM nationwide but allow states to maintain symbolic objections.

    I don’t know enough about the specific cases being considered to know whether that’s even a viable option.

  2. Mano Singham says

    That is a viable option. In the Windsor case, they ruled that the federal government had to provide benefits to couples who had got married in states that had legalized same-sex marriage, so this would mean that they were extending that to other states as well. But while the court seems to do its best to avoid unequivocal rulings and rule narrowly, doing so in this case (as you say) pretty much means that same-sex marriages become legal everywhere, and they may feel that that it is a distinction without a difference.

  3. says

    @DonDueed #1 -- That was pretty much the approach that Virginia took in Loving v. Virginia, the 1968 Supreme Court case that overturned laws banning interracial marriage. And the Supreme Court struck it down very hard.

    Aside from which, all but one Circuit Court that has ruled on marriage equality has ruled that same sex-couples have a right to be married. States cannot override that right without due process, and passing a law that says “No” does not meet that standard.

  4. Some Old Programmer says

    I wish I could be more sanguine about this, but I keep coming around to a modified version of Twain’s sentiment: “No [person’s] life, liberty, or property are safe while the [Supreme Court] is in session”.

  5. Vicki says


    Yes, all but one circuit court that has looked at the issue recently has ruled in favor of marriage. However, the Supreme Court doesn’t have to go with the majority there. What differences between circuit courts mean is that it becomes very difficult for the Supreme Court to ignore an issue, as they may if there’s only been a ruling by one circuit court.

    Mario is probably right that the Supreme Court won’t want to be on the wrong side of history, but that’s a separate point from whether more circuit courts have ruled in one direction than the other.

    Don: “Full faith and credit” would be the easy out there, yes. Before the New York legislature surprised some of us by passing marriage equality*, for a while New York was the only state that had as official policy, from the state governor and attorney general, that while a same-sex couple couldn’t get married in New York, the state would recognize such marriages from other jurisdictions, such as Canada and Massachusetts.

    *It’s not that I thought the legislature was too politically conservative to pass that law; it’s that the NY legislature has been gridlocked for ages, even when it wasn’t looking so dysfunctional that I wanted to find the state senate a good family therapist.

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