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Blog: Framing the Supreme Court Gay Marriage Debate

By Jenny May

By Jenny May

Many in Michigan, and around the country, have been watching the DeBoer vs. Snyder case closely. Now that the case that might decide the debate over same-sex marriage bans once and for all is reaching the Supreme Court, the anticipation and attention are high. The specifics of the case, as well as the other three that will be considered, are complicated.

The Supreme Court could rule in multiple ways that might have the following effects:

  1. States must recognize same-sex marriages as equal to opposite-sex marriages, and guarantee all legal protections related to these unions.

The State of Michigan will be arguing that court intervention on the issue of marriage is against states’ rights, as the people of Michigan voted for the marriage ban. For the court to rule in favor of full marriage equality, the DeBoer legal team must present evidence that not issuing same-sex marriage licenses is discriminatory. In order to be considered discriminatory, those who are in same-sex relationships must meet the requirements for a suspect or quasi-suspect class. Groups that are a part of a suspect class face a level of discrimination that is labeled “strict scrutiny.” Those in a quasi-suspect class face a level labeled “intermediate scrutiny.” In past cases, the Supreme Court has come short of defining sexual orientation as a group that fits into one of these classes. However, lower federal courts have called sexual orientation a quasi-suspect class.

If the Supreme Court should rule that not allowing same-sex marriages is discriminatory, they will most likely be admitting that sexual orientation meets the qualification of a quasi-suspect group. Such a ruling could be the basis for litigation that adds extra protections based on sexual orientation.

  1. States must recognize same-sex marriage licenses from other states, but not be required to issue their own same-sex marriage licenses.

It is important to note that this does not mean that a couple could go across a border and get married, as states tend to require that at least one individual must be a citizen of that state. Rules for citizenship may vary from state to state.

  1. States are not required to offer marriage licenses to same-sex couples.

This would mean that states have the right to create bans on same-sex marriages. This could also overturn circuit court decisions in other circuits. All other circuit courts who have taken up marriage ban cases have ruled in favor of marriage equality. This could reverse those decisions. States would then have the right to create bans on same-sex marriage. Hopefully, once a state voted in favor of same-sex marriage, it would not be able to reverse such an action. The decision on Proposition 8 in California seems to rule that once states decide to have same-sex marriage, they cannot retract their decision.

  1. Send the case back to the Sixth Circuit.

The Supreme Court could decide to ask the Sixth Circuit Court to relook at the case using a different frame of reference. However, this result seems unlikely as the Supreme Court has decided to have arguments based on specific criteria.

The case is so complex, that the court has allocated two and a half hours for arguments. Usually, each case receives only one hour of attention. The time will be spent arguing two questions:

  1. Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

Time allotted for Question 1: One and a half hours.

This is where Michigan’s case is key. Michigan’s case is the only one that focuses solely on this question. Kentucky’s case relates to this question and the second question. For this reason, Michigan and Kentucky will split the time.

  1. 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?

Time allotted for Question 2: One hour.

Cases from Ohio and Tennessee are related to this question, and they will split the time.

If we look at the Fourteenth Amendment’s first section, we can see why the justices chose to focus on these two questions.

Amendment XIV

Section I:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The amendment could be used to argue for or against equal protections for same-sex couples. Another option is that it may be used to protect citizens from one state from the repercussions of entering a different state. The amendment was partially added to ensure that one state would not overrule another and that citizens would not get caught in the middle. The arguments will take place on either April 27th, 28th, or 29th. The decisions that both sides have been waiting for are expected sometime in late June.

For further reading:

Supreme Court Transcripts

Forbes Reporting and opinion by Ilya Shapiro 

The Wall Street Journal reporting 

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