By Lisa Keen
There is at least one small nagging question looming over the happy news that the U.S. Supreme Court will hear the appeals of same-sex couples challenging laws in four states that refuse to license or recognize their marriages.
Most legal observers are saying these four cases — from Michigan, Tennessee, Ohio and Kentucky — will be the means by which the Supreme Court will strike down such laws in 22 states. (Thirteen states are still enforcing their bans and nine are still in court defending their bans.)
In making its announcement, the Supreme Court spelled out two questions for attorneys to argue. Does the 14th Amendment require a state to license a marriage between two people of the same sex?
"A 'Yes' to the first question is (the) whole ball game. We very much want that," said Al Gerhardstein, lead counsel for same-sex couples in the case from Ohio, Obergefell v Hodges (along with a companion case, Henry v Hodges).
The second question is the nagging one: Does the 14th 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?
The second question presupposes the possibility of a "no" answer on the first question.
Thus the stage is set once again for a dramatic "Most Important LGBT Case Ever Before the U.S. Supreme Court."
A "yes" answer on the first question would enable same-sex couples to obtain marriage licenses in any of the 50 states. Currently, they can marry in 37 (including Missouri, whose most populous counties are issuing licenses). A "yes" answer would also bolster the likelihood that LGBT people could rely on existing laws for equal protection and due process arguments in other arenas, including employment, public accommodations and adoption.
The cases challenging the Defense of Marriage Act and California's Proposition 8 carried that dramatic mantle in 2013. The decisions in those cases struck down a federal law that prohibited same-sex couples with marriage licenses from receiving federal benefits and allowed same-sex couples in California to marry. But they also signaled to lower courts that the Supreme Court could no longer be counted on to tolerate the sort of contortions most courts used to find a "gay exception" to every rule.
"A lot would depend on the wording of the decision, but conceivably a 'yes' answer on the first question could provide an important basis for challenging any other law that discriminates on the basis of sexual orientation," said Richard Socarides, a long-time LGBT activist who writes on legal and political issues for The New Yorker.
Dana Nessel, one of the key attorneys for the same-sex couple in the Michigan case, agreed. If the court says the bans are not justified by any rational reason, the impact might be limited. But if the court says that laws, such as these, that disfavor LGBT people fail to identify a compelling reason to do so — a much tougher hurdle to clear — "the decision could have (a) very broad impact and apply to all other areas" of discrimination."
Nessel noted that, in Michigan and other states, some adoption agencies are attempting to refuse to place children with same-sex couples and some bakeries refuse to provide services to same-sex couple weddings, often citing religious objections. And the state legislature, she said, is expected to pass laws in the coming session to enable businesses to use religious claims to discriminate against LGBT people.
"In Michigan, there are no protections of any kind for the LGBT population — in employment, housing, anything," said Nessel. "We would love to see something that could be applied to other areas."
So the best case scenario in the 6th Circuit marriage appeals would be akin to that in Loving v Virginia, the 1967 decision that struck down state bans on interracial marriages. That 1967 decision said that state laws banning marriage between persons solely on the basis of racial classifications violated the 14th Amendment's guarantees of equal protection and due process. With the 6th Circuit marriage appeals, the best language would find that laws banning marriage on the basis of sexual orientation violate the constitution.
But even a "yes" to the second question alone would "at least provide some relief," said Gerhardstein.
That's why attorneys for same-sex couples in three of the four cases on appeal (all but Kentucky) posed the question themselves, along with the question of whether the states could refuse to issue licenses.
In November, the 6th Circuit U.S. Court of Appeals became the first federal appeals court to answer "no" to both questions.
LGBT legal groups have been working with private attorneys on the four cases to make the appeals: Lambda Legal and the ACLU are working in Ohio on Obergefell v Hodges; the National Center for Lesbian Rights is working with lesbian activist attorney Abby Rubenfeld and others in Tennessee in Tanco v Haslam; Gay & Lesbian Advocates & Defenders is working in Michigan on DeBoer v Snyder; and the ACLU is involved in Kentucky in Bourke v Beshear.
The LGBT groups and their allies must file argument briefs by Feb. 27. State officials must file their briefs by March 27. Then attorneys for the same-sex couples can file one last "reply" brief by April 17. That suggests the oral arguments — which have been allotted a total of two-and-a-half hours — will probably be held on April 27, 28 or 29, the last days calendared for oral arguments in the 2014-15 session.
"The court may give additional direction to the parties in the cases regarding structuring oral argument on each of the questions," said Susan Sommer, Lambda's director of constitutional litigation. "There also may be some variations in the facts and legal issues presented in the different cases that will be taken into account as well in planning for oral argument."
But the LGBT groups and attorneys working on the cases have been "working together, very effectively, for decades towards our shared goal to win equality," she said. "And I'm confident we will continue to work together effectively in this home stretch."
