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Supreme Court agrees to hear same-sex marriage cases

Gay-rights advocate Vin Testa waved a rainbow flag in front of the U.S. Supreme Court in Washington in 2013.
Gay-rights advocate Vin Testa waved a rainbow flag in front of the U.S. Supreme Court in Washington in 2013. The Associated Press

The Supreme Court on Friday set the stage for a long-awaited showdown over same-sex marriage, as justices agreed to hear multiple challenges to state bans on the practice.

With lower appellate courts split, the high court agreed to resolve the constitutional question. The consolidated cases to be heard in the spring will reconsider the circuit court ruling that’s upheld the marriage restrictions instituted in Kentucky, Michigan, Ohio and Tennessee.

The court’s highly anticipated decision sets up a longer-than-usual, 150-minute oral argument for the spring and a final opinion by the end of June. Two intertwined questions will be answered: May states prohibit same-sex marriage, and can they refuse to recognize same-sex marriages performed elsewhere?

“We look forward to our day in court,” said Cropper, Ky., resident Kimberly Franklin, who married her partner, Tamera Boyd, in Connecticut in 2010, “and we look forward to the Supreme Court settling this once and for all.”

Michigan nurse April DeBoer, who along with her partner of 10-plus years, Jayne Rowse, challenged that state’s marriage restrictions, likewise praised the decision as long overdue. DeBoer and Rowse initially won a judge’s ruling last year that struck down Michigan’s ban following a nine-day trial, only to have the decision overturned by an appellate panel.

“We are now that much closer to being fully recognized as a family, and we are thrilled,” DeBoer said.

Conservative opponents of same-sex marriage also welcomed the decision, but for the contrary reason that they hope the high court will reverse what most lower courts have done.

“The U.S. Supreme Court now has the opportunity to issue a long-overdue ruling to restore the freedom of the people to uphold marriage in their state laws as the union of a man and a woman,” said Tony Perkins, president of the Family Research Council.

On both questions being addressed, the Supreme Court said Friday that it would consider whether the 14th Amendment was understood to require states to recognize same-sex marriages. The 14th Amendment guarantees “equal protection” and “due process.”

The same-sex marriage cases will mark the definitive follow-up to the court’s 2013 decision striking down a key provision in the federal Defense of Marriage Act. In striking down the 1995 law’s ban on same-sex couples obtaining myriad federal benefits, the court’s 5-4 majority laid the foundation for attacking state-imposed marriage limitations.

“This places same-sex couples in an unstable position of being in a second-tier marriage,” Justice Anthony Kennedy wrote then of the federal benefit restrictions. “The differentiation demeans the couple, whose moral and sexual choices the Constitution protects.”

Kennedy, the author of several key gay-rights decisions during his 27 years on the court, is likely to be the swing vote once more on the closely divided nine-member court.

Since the high court’s decision in the Defense of Marriage Act case, same-sex couple advocates have racked up dozens of lower-court victories, and have lost only twice, according to a tally by the group Freedom to Marry.

Thanks in part to the court actions, 35 states and the District of Columbia permit same-sex marriages. Research by the Williams Institute at the UCLA School of Law estimates there were about 130,000 married same-sex couples nationwide in 2013. The number has risen with every lower-court decision.

Attorney General Eric Holder said the Obama administration expected to file a friend of the court brief “that will urge the Supreme Court to make marriage equality a reality for all Americans.”

Last year, the Supreme Court declined to hear multiple same-sex marriage cases. The justices didn’t offer an explanation, but the lack of a division among appellate circuits was widely understood to be a reason.

That appellate unanimity changed in November, when the 6th U.S. Circuit Court of Appeals upheld bans on same-sex marriage in Kentucky, Ohio, Michigan and Tennessee. The 6th Circuit’s majority decision, written by Republican appointee Jeffrey S. Sutton, concluded that voters, rather than judges, should be entrusted with marriage decisions.

“Is this a matter that the national Constitution commits to resolution by the federal courts, or leaves to the less expedient but usually reliable work of the state democratic processes?” Sutton asked rhetorically.

Sutton, writing for himself and Judge Deborah L. Cook, declared that social change is best accomplished “through the customary political processes” in which individuals can meet “not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.”

The appellate court’s decision was lambasted by same-sex marriage advocates and by Judge Martha Craig Daughtrey, a Clinton administration appointee who accused her two fellow judges of failing to “grapple with the relevant constitutional issue” in the combined cases.

At the same time, the 6th Circuit’s decision created the so-called circuit split that made it almost inevitable that the Supreme Court would take up the case.

“It is rare that a split among the circuits is so stark and so infamous that the average layperson may be expected to know of its existence, but this is such an instance,” Louisville, Ky.-based attorney Daniel J. Canon noted.

Canon represents, among other clients, Timothy Love. Last Feb. 13, Love and his partner of 33 years, Lawrence M. Ysunza, went to the Jefferson County Clerk’s office in Louisville. They presented their $35 and driver’s licenses, but were denied a marriage license.

The couple fears that health care providers and assisted living facilities may not allow them to be together or care for each other as they age.

“This is the beginning of the end game for freedom to marry,” American Civil Liberties Union attorney James Essex said Friday.

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