After punting on the issue of same-sex marriage last year, the Supreme Court announced earlier today that it will decide whether all 50 states must allow LGBT couples to legally marry.
The justices announced that they will consolidate challenges to state-level bans on same-sex marriage in Kentucky, Michigan, Ohio, and Tennessee. All four bans had been struck down by federal district judges in 2013 and 2014. However, they were reinstated in November by a three-judge panel of the Sixth Circuit Court of Appeals, which covers all four states. The majority opinion, written by George W. Bush appointee Jeffrey Sutton, conceded that? marriage equality would eventually be the law nationwide. However, Sutton wrote, it was a question that should be decided by the people and their elected representatives.
The Supremes passed on issuing a definitive ruling in October when they refused to hear appeals from rulings allowing same-sex marriage in five states. However, the Sixth Circuit decision was the first time at the federal level where a ban on same-sex marriage had been upheld since the Supremes effectively neutered the Defense of Marriage Act in 2013. Since that ruling, almost 60 rulings in federal and state courts have come down in favor of marriage equality, with only five allowing bans to stand. The Supreme Court typically looks for splits between circuits when deciding whether to grant cert.
According to the order granting cert in this case, the plaintiffs’ briefs must be filed by February 27, with the states’ responses due by March 27. That means a decision will be issued at some point before the current term ends in June. Freedom to Marry and the Human Rights Campaign both expect that oral arguments will take place sometime in the spring, with a ruling to come near the tail end of the term in June. There will likely be an avalanche of amicus curiae briefs in this case, but we already know what one of them will contain. Last summer, Attorney General Eric Holder announced that if a case on same-sex marriage ever reaches the Supreme Court, the Justice Department would file a brief supporting marriage equality.
Adam Liptak, The New York Times’ Supreme Court correspondent, talked to several observers, and most of them think that the Supremes will ultimately establish a nationwide constitutional right to marriage equality. It’s hard not to see why. For one thing, given the near-certainty that the Court’s four liberals will back the plaintiffs, the four conservatives would have to persuade Anthony Kennedy to reject the reasoning he used when he wrote the decision that neutered DOMA. Frankly, that doesn’t seem likely. Kennedy’s opinion delved heavily into the harm gay couples and their families suffer when their relationships aren’t legally sanctioned. Most courts have relied on that reasoning to rule in favor of marriage equality. As a result, 36 states and the District of Columbia–representing more than 70 percent of the population–now allow LGBT couples to legally marry.
Not only that, but the arguments in favor of these bans are downright laughable. Take Kentucky’s, for instance. It tried to defend its ban by claiming that since gay couples can’t have babies on their own, it would be irresponsible to allow them to marry. When federal district judge John Heyburn, an appointee of the first Bush, read this brief, he not only threw the ban out, but sharply rebuked Kentucky for making arguments that “are not those of serious people.” When a judge uses language like that, he’s not just saying that the person making the argument is wrong. He’s saying that he has no case at all.
Combine these facts with the Sixth Circuit essentially conceding that marriage equality is inevitable, and we have every reason to hope that the Court will issue a ruling that will be long overdue–even if it’s only a 5-4 ruling.
Let us know your thoughts at the Liberal America Facebook page. Sign up for our free daily newsletter to receive more great stories like this one.
Darrell Lucus, also known as Christian Dem in NC on Daily Kos, is a radical-lefty Jesus-lover who has been blogging for change for a decade. Follow him on Twitter @DarrellLucus or connect with him on Facebook.
