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 once and for all. The consolidated cases to be heard in the spring will reconsider the one circuit court ruling that has upheld the marriage restrictions instituted in Kentucky, Michigan, Ohio and Tennessee.
The court’s highly anticipated decision sets up an oral argument for the spring and a final opinion by the end of June. Two intertwined questions will be answered: Can states prohibit same-sex marriage, and can they refuse to recognize same-sex marriages performed elsewhere?
“There is little doubt this case presents an important question of federal law that has not been, but should be, settled,” Lousville, Ky.-based attorney Daniel J. Canon noted in a brief.
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.”
Since the high court’s June 30, 2013 decision in the Defense of Marriage Act case, same-sex couple advocated have wracked up dozens of lower-court victories, and only lost twice, according to a tally by the group Freedom to Marry.
Thirty five states and the District of Columbia currently permit same-sex marriages.
Last year, the Supreme Court declined to hear multiple same-sex marriage cases. The court did not offer an explanation at the time, but the lack of a division among appellate circuits was widely thought to be a reason.
That appellate unanimity changed in November, when the U.S. 6th Circuit Court of Appeals upheld the same-sex marriage bans in Kentucky, Ohio, Michigan and Tennessee. The Sixth Circuit's majority decision, written by Republican appointee Jeffrey S. Sutton, concluded voters rather than judges should be entrusted with the decision about marriage.
"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, a fellow George W. Bush appointee, 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,” Canon wrote in a legal brief.
Canon represents, among other clients, Timothy Love. On Feb. 13, 2014, 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 drivers’ licenses, but were denied a 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.