On Tuesday, April 28, the United States Supreme Court will hear argument relating to cases originating in four states – Kentucky, Michigan, Ohio, and Tennessee – appealed from the Sixth Circuit’s decision to uphold state bans on same-sex marriage. In a 2-1 decision, the Sixth Circuit held that states have the right to define marriage. This was the first circuit court decision to uphold a state ban. Last year, the Tenth Circuit upheld Utah district court case Kitchen v. Herbert, which struck down Utah’s ban on same-sex marriage.
Oral argument will last 2 ½ hours, and will focus on 2 questions, which are generally referred to as the “marriage” question and the “recognition” question:
(1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
(2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
On the marriage question, Plaintiffs/Petitioners are arguing that both the Fourteenth Amendment and the Due Process Clause protect their right to marry. They argue that marriage is a fundamental right, and they should have equal access to it. On the recognition question, Plaintiffs/Petitioners argue that tradition, and federalism, require a state to recognize marriages based on laws of the state where the marriage is performed. Interestingly, the parties do not point to the Full Faith and Credit clause in their arguments.
On the marriage question, the states/Respondents argue that states have the right to define marriage, and such decisions should be left to the people of each state. Further, marriage is a historical and traditional institution dating back thousands of years – thus, there is no “fundamental right” to marry someone of the same sex. On the recognition question, the states/Respondents similarly argue that one state’s decision to define marriage a certain way should not force another state to adopt that definition.
The focus on marriage as a fundamental right allows a court to sidestep the question of which level of review courts should exercise for alleged discrimination against homosexual individuals. The Court has previously refused to decide whether “strict scrutiny” applies. The Ninth Circuit is the only circuit that has applied this highest level of scrutiny. It is noteworthy because under the lower “rational basis” review, most state interests will be legitimate reasons for “discrimination.”
Notably, both sides seem to be appealing specifically to Justice Kennedy, known as the deciding vote in Windsor, which struck down a part of DOMA and extended federal marriage benefits to same-sex couples married under state law. The parties on Tuesday will both appeal to the protection of children affected by same-sex relationships, an important factor in the Windsor case, as well as Justice Kennedy’s quintessential beloved issue – the separate nature of federal and state sovereignty.
At the time of Windsor, 13 states recognized same-sex marriage. Today, 37 states do. Justice Ginsburg has said repeatedly that the Court intervened too quickly in Roe v. Wade and failed to let the political process play out. Similarly, Justices Kennedy and Sotomayor have commented on the states’ roles in “experimenting” with the issue. While the Court seemed reticent to decide the issue in Windsor, it seems safe to say it is willing to do so now.
There has been some discussion of a possible “compromise” ruling, wherein the Court answers no to question one, but yes to question two: a state is required to recognize a same-sex marriage granted in another state, but not required to grant such license itself. The curious way in which the Court framed the two specific questions for review, and Justice Kennedy’s sympathy for federalism, lends credence to this view. However, the sheer number of states, and courts, now recognizing such a right will be difficult for the Court to reverse.
Over 125 amicus briefs have been filed by states, interested groups and individuals, and even the federal government. Amicus parties are known as “friends of the court,” and are generally interested non-parties who want to weigh in on the issue. Most of these briefs aren’t particularly persuasive, but some might make a difference. Utah submitted an amicus brief in this case, joined by 15 other states, to argue for a state’s right to decide the issue.
Mary Bonauto, a longtime gay rights advocate, will be arguing the marriage question on behalf of Plaintiffs/Petitioners. Washington lawyer Douglas Hallward-Driemeier will argue the recognition question.
Solicitor General Don Verrilli will have 15 minutes to argue the marriage question, in favor of the Plaintiffs.
John Bursch will be arguing the marriage question on behalf of the states. Joseph Whalen, an associate solicitor general from Tennessee, will argue the recognition question.
It will be the first time arguing in front of the Supreme Court for both Mary Bonauto and Joseph Whalen.
In a new court development, the transcript and audio will be available within a few hours of the hearing on Tuesday. The opinion will likely be published in June. Whether the opinion will affect Utah depends on what the Court ultimately decides. If the Court overturns the Sixth Circuit, and holds there is a constitutional right to same-sex marriage, Utah won’t be affected. If the Court upholds the Sixth Circuit’s state’s rights argument, the Utah Attorney General’s Office will likely petition the Tenth Circuit to reconsider its prior ruling in Kitchen v. Herbert.