Will U.S. Supreme Court hear a case now that more than half the states have marriage equality or marriages laws ruled unconstitutional?
STILL WAITING | Jody Scheske, left, the attorney representing the two same-sex couples trying to get divorced in Texas, speaks to people after the Texas Supreme Court arguments in November. The court doesn’t have a deadline to rule, and may not rule anytime soon. (Anna Waugh/Dallas Voice)
Justice Ruth Bader Ginsburg
Last week, marriage equality hit a milestone.
When judges in Oregon and Pennsylvania declared those state’s marriage bans unconstitutional and state officials decided not to challenge the decisions, we had marriage-equality states Nos. 18 and 19. Less than a week earlier, Arkansas and Idaho had their marriage bans declared unconstitutional. More than 300 couples in Arkansas married before the state got an injunction.
In addition, judges in Utah, Oklahoma, Michigan, Texas and Virginia declared those state’s marriage bans unconstitutional and judges in
Tennessee, Kentucky and Ohio ruled those states must recognize out-of-state marriages, at least in certain cases.
That makes 29 states — more than half — with marriage equality or marriage equality rulings.
Supreme Court Justice Ruth Bader Ginsburg cautioned the court not to legalize same-sex marriage before states were ready. She used the example of Roe v. Wade, the Dallas case that legalized abortion nationwide.
In 1973, when the ruling was issued, only four states — New York, Washington, Hawaii and Alaska — had abortion on demand. In 16 states, abortion was legal under certain circumstances but illegal in 30 states under all circumstances, including threat to the woman’s health.
Ginsburg believes had the court ruled incrementally, opposition to legalized abortion wouldn’t have been as strident as it’s been.
Ruling too soon backfired in the case of sodomy.
The U.S. Supreme Court upheld the constitutionality of Georgia’s sodomy law in Hardwick v. Bowers in 1986. Just 17 years later, the court decision was overturned in Lawrence v. Texas.
States were moving in the direction of loosening restrictions on sodomy, but the court wasn’t ready to side with the LGBT community in Bowers. In 1960, every state had sodomy laws on the books. Five years later, the U.S. Supreme Court took a contraception case that recognized a married couple’s right to privacy. By 1986, fewer than half the states had repealed their sodomy laws, but by 2003, only 10 states still had sodomy laws on the books. Of those, four applied only to gay men.
Everyone in the LGBT community is anxious for the Supreme Court to give the Defense of Marriage Act and marriage discrimination a final blow. Appeals court rulings are expected soon in the Utah and Oklahoma cases, so the court could decide to take one or both of those cases.
Since the Windsor decision that invalidated parts of DOMA last June, marriage equality has won in every court where it’s been heard. A number of additional cases have upcoming dates. In June, Colorado and Louisiana cases will be in court. In July, a Florida hearing begins.
Wisconsin’s trial begins in August and, in September, Idaho and Alabama are set for hearings.
Rulings are expected at any time in a number of cases including the Texas divorce case pending before the Texas Supreme Court.
Several cases may be ready for the U.S. Supreme Court by next session. The Utah and Oklahoma decisions are expected from the 10th Circuit Court of Appeals any time, and Virginia is expected as early as this summer.
During the 2014-15 session, the Supreme Court could decide to hear any one of the cases decided by an appeals court, or it may choose to sit it out another term to see how all of the cases play out in lower courts.
As of this week, every state except North Dakota has at least one case filed. The cases are diverse, covering more than just the right to marry. In some states, the cases involve the right to stay married. If a couple is married in one state and then travels to another, do they have the right to expect their marriage to continue to be considered valid?
Several cases involve divorce, including a Texas case. While a couple may marry anywhere, residency is required to file divorce. If a couple is married in one state, but lives in another, must the state recognize the marriage for the purposes of divorce?
And in another Texas case, two straight men filed for the right to marry. They’re claiming simple sex discrimination is keeping them from tying the knot. Should marriage be about more than sexual attraction and allow two people who simply want to take care of each other to marry?
The Supreme Court may just let the lower courts sift through all of these questions for another year before tackling the issue again.
This article appeared in the Dallas Voice print edition May 30, 2014.