Will same-sex couples soon have the right to marry in all 50 states? The U.S. Supreme Court is expected to answer that question as early as Friday and definitely by early next week, when its term ends.
Gays and lesbians can legally marry in 36 states, thanks to lower federal court rulings, legislative actions and voter referendums. Same-sex marriage bans in North Carolina and South Carolina were ruled unconstitutional by the courts, which allowed marriage licenses to be issued to gays and lesbians in both states.
But a federal appeals court in Cincinnati upheld the same-sex marriage bans in four states: Tennessee, Kentucky, Ohio and Michigan.
Now the country’s highest court will decide the matter in a case from Ohio – Obergefell v. Hodges – that could prove to be a legal and social milestone in American history.
The 2 basic questions before the court
Question 1. Do same-sex couples have a constitutional right to marry? States long defined marriage as the union between one man and one woman. But the 14th Amendment of the Constitution enshrines equal protection under the law and promises due process protection of certain fundamental rights.
Question 2. If states can refuse to issue marriage licenses to same-sex couples, do they have to recognize same-sex marriages legally performed in other states? Many gays and lesbians married their partners in one state but live in another.
How will the nine justices answer?
Scenario A: All state bans are unconstitutional.
Impact: Same-sex couples could legally marry in all 50 states. Look for about 70,000 such marriages to happen in the 14 states that now ban them, according to the Williams Institute at UCLA. Currently, the institute estimates, there are 360,000 married same-sex couples in the United States. With marriage come scores of state and federal rights and benefits, ranging from joint federal and state tax returns to Social Security survivor benefits for spouses.
In the Carolinas: Same-sex couples who have married in the two states could go forward without any legal clouds hanging over their unions – or their benefits. A recent Observer check with register of deeds and probate offices found that, from last October to April, Mecklenburg County has issued 747 same-sex marriage licenses – nearly 20 percent of the licenses processed during that time. The numbers from surrounding counties: Gaston, 62; Iredell, 15; Rowan, 12; Union, 16; Lincoln, 20; and York County, S.C., 24. (Cabarrus County’s register of deeds office said it has not kept track).
Scenario B: States can deny same-sex marriage but must recognize those in states that allow it
Impact: If the court finds no constitutional right for gays and lesbians to marry, it could still require that states recognize same-sex marriages legally performed in other states. The likely result: Same-sex couples who couldn’t marry in the states where they reside would cross state lines, get legally married, and then demand that their home states recognize their unions.
In the Carolinas: It could get trickier in states like North Carolina and South Carolina, where same-sex couples were able to marry because of lower federal court rulings. If the Supreme Court’s decision raises questions about those rulings – and those marriages – states with conservative attorneys general, governors and legislatures could possibly refuse to recognize those marriages as legal. Some gays and lesbians married in the Carolinas could get married again in another state. Or they could refuse to do so and, instead, go to court if their home states denied them the benefits enjoyed by married couples.
Scenario C: It’s up to states to decide.
Impact: A ruling that would leave it all up to the states – whether to grant marriage licenses to same-sex couples and whether to recognize such weddings performed in other states – could leave intact the current bans in 14 states. But in those states that relied on lower federal court rulings to marry gays and lesbians, there could be uncertainty and disarray. Some more liberal states, such as California, would likely recognize the marriages performed within their borders after the court rulings. But other more conservative states may move to revive their bans – and refuse to recognize same-sex marriages performed in other states where it’s legal.
In the Carolinas: Such a ruling would “throw everything back to square one,” said Charlotte attorney Luke Largess, a co-counsel in the case that led a federal judge to strike down North Carolina’s ban on same-sex marriage. That ban and the one in South Carolina would presumably be valid again. But because both states will be home to many same-sex couples whose marriages were legal when they were performed, such a high court ruling would spell “chaos” in the Carolinas, said Suzanne Reynolds, dean of the law school at Wake Forest University. Same-sex couples married in the Carolinas under now-invalid lower court rulings could face the same scenario B. But if the Carolinas refuse to recognize same-sex marriages legal in other states, the couples could be unable to have their marriages – and benefits – recognized in their home states.
▪ Like most legal experts, Reynolds thinks the Supreme Court will rule 5-4 that state bans on same-sex marriage violate the equal protection clause in the Constitution. She also predicts Associate Justice Anthony Kennedy, who has written the court’s previous landmark decisions affecting gays and lesbians, will be the deciding vote – and the author again.
▪ Based on comments during oral arguments by Chief Justice John Roberts, Largess holds out the possibility of a 6-3 decision, with Roberts joining the majority and writing a decision that may find a different justification – one involving gender discrimination – to legalize same-sex marriage from coast to coast.
▪ That said, Reynolds and other experts say they are a little less confident about their prediction after the court’s oral arguments in April, when Kennedy seemed sympathetic to points made by both sides.
▪ As for the American people, a poll this month by the nonpartisan Public Religion Research Institute found that 65 percent of those surveyed expect the high court to overturn the state bans on same-sex marriage. Only 25 percent said those prohibitions would survive. The Associated Press contributed.