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Michigan ACLU Discuses SCOTUS Tea Leaves

BY AJ TRAGER

WASHINGTON D.C. – Mary Bonauto of Gay & Lesbian Advocates & Defenders and Doug Hallward-Driemeier of Ropes & Gray LLP made their arguments before the U.S. Supreme Court in a two and a half hour debate, arguing the constitutionality of same-sex marriage, and thus the future of same-sex couples nationwide.
In January 2015, the U.S. Supreme Court granted review of an aberrant 6th Circuit Court of Appeals ruling that upheld discriminatory marriage bans in Michigan, Ohio, Kentucky and Tennessee, the first Federal court to do so after the Supreme Court's 2013 Windsor decision.
The high court questioned why same-sex couples should be denied freedoms that provide benefits and stability to families but kept in mind that they were seeking a change to an institution defined the same way for a millennia.
In her opening statement for the consolidated case, Obergefell v. Hodges, Bonauto noted that the love, commitment and mutual support shared by married same-sex couples is equal to that of opposite-sex spouses but that same-sex couples are denied the legal protection afforded to opposite-sex couples.
"When you talk about marriage as a fundamental right, and it is found to be a fundamental right by the court, that means the scrutiny that they will provide to the states' arguments — wanting to deny same-sex couples the right to marry — is going to have a higher standard for the state to meet," explained Jay Kaplan, staff attorney with the ACLU of Michigan LGBT Project. "If they don't find it is a fundamental right and they look to it on equal protection grounds, traditionally with LGBT cases in the past, the court has provided the most deferential level of scrutiny on rational basis to laws and policies."
Kaplan followed the Supreme Court Blog throughout the morning arguments and was surrounded by analysis and transcripts of the historic trial in marriage equality history.
"It's been an exciting and a historic day before the United States Supreme Court looking at both the issue of the right to marry and whether or states are obligated to recognize legal marriage between same-sex couples," he said.
Tremendous progress has been made for LGBT equality. Kaplan, in a teleconference following the SCOTUS trial, reminded listeners that, in 2013, the Supreme Court found a section of the Defense of Marriage Act unconstitutional: that the federal government would not recognize legal marriages between same-sex couples. At that time the United States had 13 states that permitted same-sex couples to get married.
"You can't always predict how the court is going to decide the case," Kaplan pressed. "When you look at the configuration of SCOTUS, I think it is safe to say that we have four progressive justices on the court, all three females on the court as well as Justice Breyer."
An estimated 122,000 same-sex couples are raising 210,000 children under age 18, of whom 58,000 are adopted or foster children. Same-sex couples are nearly three times as likely as their different-sex counterparts to be raising an adopted or foster child. Married same-sex couples are five times more likely to have these children when compared to their married different-sex counterparts. In Michigan, Kentucky, Ohio and Tennessee — the four states at the center of the debate before SCOTUS — 19 percent (nearly 11,000) of the 56,000 same-sex couples are raising more than 18,000 children under 18 years old.
"Many times in these oral arguments the court doesn't address all the different issues. They are familiar with the arguments from the many amicus briefs, so they raise more philosophical questions. Today was less about law and more philosophical in nature," Kaplan explained.
Kaplan suggests that there could be three possible scenarios: the court majority could decide that states don't have to provide recognition for marriages out of state and don't have to recognize marriages since 26 of the 37 states that currently recognize same-sex marriage had recognized same-sex marriage as a result of court rulings; another scenario is a majority of justices would be in favor of the second question and would have individual states recognize same-sex marriage, and couples could go out of state to marry and return to their residence where the the state would have to recognize it; or the court could decide that marriage equality would be the law of the land.
Justice Thomas never asked a question, but reliably votes for the conservative vote. In past LGBT cases, Kennedy has been the swing judge.
"Once again, these are guesses," Kaplan said. "The court has to sit down and have a conference and take a vote for who is going to write the opinions; all of these are beyond our knowledge and prediction."
A decision is expected in June 2015.

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