Couples, officials, critics get ready for landmark decision
WITH a US Supreme Court ruling on same-sex marriage expected any day now, gay couples in states with bans are making plans, courthouse officials are preparing, and critics are working to keep up the opposition.
Marriage license bureaus are bracing for a rush of applicants if the high court overturns bans nationwide. Meanwhile, a series of planning sessions has begun by groups intending to “explore religious objection responses to protect ‘traditional marriage’ limited to heterosexuals.”
The high court is reviewing legal challenges to gay marriage bans in four states—Ohio, Tennessee, Michigan, and Kentucky—in Obergefell v. Hodges.
Obergefell sued Ohio, challenging its ban on same-sex marriages, after the state refused to acknowledge his marriage to John Arthur on Arthur’s death certificate. They were married in Maryland, which legalized gay marriages, just months before Arthur died in 2013.
“This case is so important to me and to millions of people across the country,” Jim Obergefell said from his place in front of the public line. “To me, the only place I could possibly be when that decision comes out is in the courtroom.”
The four liberal justices are expected to support same-sex marriage, and conservative Justice Anthony Kennedy, the expected swing vote, has a history of backing gay rights. The most recent case Kennedy influenced was in 2013, when the court struck down a federal law denying benefits to married same-sex couples.
During oral arguments back in April, Kennedy posed tough questions to lawyers from both sides, while still stressing the “nobility and dignity” of same-sex couples.
Last week, the high court was split 5-4 in only seven of the 46 cases decided at that point.
According to a CBS Poll, the majority of Americans seem ready for one law of the land: 54 percent think there should be one federal law for all states regarding same-sex marriage, while 41 percent think it should be left to each individual state to decide. The majority (57 percent) of Americans surveyed support legalizing gay marriage, while the majority of Democrats (69 percent) support it and over half of Republicans (55 percent) do not. As public opinion remains divided, those numbers continue to change.
Over the weekend, hundreds of students, professors, parents, lawyers, and activists of all views stood outside the Court in Washington awaiting the landmark decision, hoping to witness history.
“This is incredibly exciting,” said Barbara Fox, 59. “[The debate is] something that I have been so invested in.”
The Supreme Court has already paved the way for same-sex marriage in California by undoing voter-approved Proposition 8 in 2013. However, it did so through a convoluted legal avenue that left broader questions unanswered, such as whether it is unconstitutional to deny same-sex couples the right to marry.
The civil rights showdown over gay marriage rights has reignited, as the court is set to decide once and for all whether states can issue bans on the nuptials. Even in California, where the matter appeared to be settled and thousands of gay couples have legally wed, there is a legal shadow over the issue. Other cases—such as in Tennessee and 14 other states, where gay marriage is not recognized—also have implications for hopeful California couples.
Although 36 states recognize same-sex unions, many legal experts do not expect the Supreme Court to roll back the clock on gay marriage rights. But it is not considered a sure bet that the conservative court will rule entirely in favor of same-sex marriage advocates, raising the possibility critics could try to revive their cause in California.
“I don’t worry so much about California being undone,” said Sandy Stier, who is married to Kris Perry from Berkeley, Calif. “But to have unequal access to marriage would send a terrible message. The court has a change to address the issue. It’s the honorable thing to do, and what the country needs.”
If the court finds that the definition of marriage should be left individually to the states, same-sex opponents could use the opportunity to return to court to try to bring back Prop 8.
As a result of the high court’s 2013 decision, Prop 8 supports do not have a right to defend the law or contest former San Francisco District Court Judge Vaughn Walker’s ruling declaring the ban unconstitutional for gay couples.
California Governor Jerry Brown and Attorney General Kamala Harris, who refused to defend Prop 8, are expected to balk at going to court in its defense if the Supreme Court rules for the state-decision bans. Legal experts say it is “unlikely” anyone else would have the legal right to directly challenge Walker’s injunction, which Harris already determined applies statewide.
“The question is how it would get to a court to say it’s unconstitutional,” said Erwin Chemerinsky, Dean of UC Irvine Law. Chemerinsky expects some attempt to revive Prop. 8 if the Supreme Court sides with state marriage bans.
Some legal scholars say any county clerk in California who refuses to issue a marriage license, or any taxpayer, could force the courts to revisit the question. For example, a group could go to a state court and argue that the governor and attorney general have an obligation to defend a voter-approved law if the Supreme Court finds similar laws constitutional, UC Davis law professor Vikram Amar said.
Anti-gay marriage groups, such as SaveCalifornia.com, have tried several ballot measures restoring the overturned Prop 8. However, with field polls showing greater overall support for same-sex couples (statewide, 61 percent were for gay marriage in 2013), new legislation would be a political longshot.
“I do not think any of this is going to happen,” said Amar, who predicts the Supreme Court will not “repudiate” same-sex marriage rights in states like California.
For couples who have been married, such as Perry and Stier who were wed in 2013, the high court’s decision will not affect them. The courts have consistently refused to strip away rights given in past rulings.
“It has really allowed us to feel much more settled as a couple,” Stier said, expressing his relief to be able to live freely in a same-sex marriage, even while the rest of the nation still awaits a universal outcome. “We’ve gotten kind of settled into the kind of normalcy that a lot of people take for granted.”
“When people say we should just be happy with the progress, the reality is every day we delay is so harmful to the LGBT community,” said supporter Shane Crone outside of the court. “The country is ready, and the majority of people do support it now. So I think it’s inevitable what’s going to happen behind those doors.”
Other major cases pending on the court’s docket include: gay marriage, Obamacare and health care subsidies, lethal injections, mercury emissions, and housing discrimination. (with reports from San Jose Mercury News, Los Angeles Daily News, CBS, USA Today, Associated Press)
