Saturday, January 17, 2015
Today’s announcement that the US Supreme Court will hear appeals to the aberrant Sixth Circuit ruling upholding state bans of marriage equality is important. It may turn out to be historic, too, but the ruling certainly will be. It may be a landmark.
Obviously no one can say with certainty how the Court will rule, but people far smarter and more learned about these things than me can do a pretty good job of laying out the odds. Nevertheless, I want to say what I think will happen, and why, just so it’s “out there”.
If I had to bet, it would be that Court will issue a Loving v. Virginia-type ruling on marriage equality later this year, and that it will give the USA 50-state marriage equality. I personally don’t see any other viable option.
Thirty-six US states have marriage equality, and seventy percent of Americans live in those states. The present situation is untenable: People legally married in one state could lose all their legal rights and responsibilities simply by crossing state lines. If they have children, their parental rights could instantly change the minute they entered a “ban” state. All of which makes LGBT people second-class citizens who are not being treated equally under law as the 14th Amendment to the US Constitution requires.
If the Court upholds the decision of the Sixth Circuit, and agrees that states can ban same-gender marriage, then it will make the bad situation far worse. It would potentially throw the existing marriage laws in a couple dozen states up in the air—and creates the possibility that the currently-legal marriages of same-gender couples could be reversed (and we all know that many rightwingers in those states would try to do exactly that). So, we’d end up with a situation worse than now, but worse even than when there were fewer states because so many states with constitutional bans in place gained marriage equality through court rulings.
Historically, the Supreme Court has tended to favour the sameness of laws nationwide where rights of citizens are involved: They don’t like patchworks of differing rights from state to state. Moreover, the federal government recognises marriage equality for federal purposes, meaning that legally married same-gender couples in states without marriage equality are nevertheless seen as married for federal purposes (unless Republicans in Congress succeed in changing that, which looks pretty much impossible).
A lot has changed since the Court struck down Section 3 of the “Defense” of Marriage Act: Clear and overwhelming majorities of Americans support the freedom to marry, and that's in addition to the facts I mentioned earlier, that 36 states have marriage equality covering 70% of the American people.
Add all that up—we already have an untenable situation, one that would be made far worse if the Sixth Circuit ruling were upheld, the fact that marriage equality is already a fact for more than two-thirds of US states and the vast majority of the American people, and also that polls show the American people back marriage equality, and all that points to the Supreme Court striking down all the remaining bans on marriage equality—as it should do, of course.
Only the Supreme Court can bring this struggle to an end and ensure that all citizens—LGBT and heterosexual alike—are treated equally under law. I think they will, and what a wonderful day that will be!
The image of the US Supreme Court building at the top of this post a Creative Commons licensed photo by Wikiwopbop, published by Wikimedia Commons.