Movement toward same-sex marriage (SSM), LGBT equality etc.

Part 1: 2015-JAN-16:
U.S. Supreme Court accepts four SSM cases: one
each from Kentucky, Michigan, Ohio, & Tennessee.

The two questions at the core of these cases.
Current status of SSM in the U.S.
Timing of the cases' hearing and ruling:

This is a really BIG development! A tipping point and a
possible resolution in the conflict over marriage equality.

We use the acronym "SSM" to represent "same-sex marriage."
"LGBT" refers to lesbians, gays, bisexuals, transgender persons
and transsexuals. "LGB" refers to lesbians, gays, and bisexuals."
"Marriage equality" means that both opposite-sex and same-sex
couples can marry.

Quotation:

On 1967-JUN-12, Chief Justice Earl Warren wrote the opinion in the case Loving v. Virginia which made interracial marriages legal across the U.S. It stated, in part:

"Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. ... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State." ₁

Substituting "sexual orientation" for "racial" and "same-sex" for "another race" could convert this statement for recycling in a ruling favoring marriage equality.

The nine justices of the court decided during a private meeting on 2015-JAN-16 that they will accept appeals from 15 plaintiffs in four cases originating from four states: Kentucky, Michigan, Ohio, and Tennessee.

All four of these states have state constitutions that have been amended by voters to restrict marriages to unions of one woman and one man. The states have marriage laws on the books that prohibit same-sex marriages. The bans also prohibit recognition of such marriages (SSMs) that have been legally solemnized out-of-state. The U.S. 6th Circuit Court of Appeal has jurisdiction over these four states. On 2014-NOV-06, a three-judge panel of that court found the bans constitutional by a vote of 2 to 1.

In contrast, the 4th, 7th, 9th, and 10th U.S. Circuit Courts of Appeal had each previously heard similar appeals from other states. All had declared similar bans unconstitutional and void because they were seen to violate same clauses in the U.S. Constitution. This lack of consistency among the Circuit Courts is called a "circuit split" among the Circuit Courts. Since almost everyone believes that harmony should exist in the marriage laws throughout the country, the high court was under great pressure -- internal and external -- to grant certiorari -- to hear appeals -- of the four cases and render a decision that will probably bring harmony to the country's laws.

Because of the similarity among the four cases, they have been consolidated. They will be heard together in a two and a half hour hearing on 2015-APR-28. It is likely that the combined case will be named Obergefell v. Hodges, which is the name of the Ohio case. Jim Obergefell is one of the plaintiffs in the case. Richard Hodges directs the Ohio Health Department which is responsible for registering marriages in that state.

We expect that "Obergefell" will go down in history as of equal importance to Loving v. Virginia which was the previous lawsuit that redefined marriage in the U.S. That was decided by the high court in 1967 -- almost a half century ago. It legalized marriages by interracial couples across the country.

The U.S. Supreme Court asked the plaintiffs and defendants to submit briefs on two specific questions:

• "Does the Fourteenth Amendment [to the U.S. Constitution] require a state to license a marriage between two people of the same sex?"
  
  
• "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?" ₂

Some commentators have speculated that the Court may be leaning towards not requiring states to marry same-sex couples, but would require them to recognize same-sex couples legally married out-of-state. The end result, as far as same-sex couples are concerned, would be similar. However, they would experience the minor inconvenience of having to leave the state where they live in order to be married. Their marriage would automatically be a "destination wedding." The state that allows such couples to marry would then benefit from the tourist dollars generated, while the state where the couple resides would not.

Ilya Shapiro, writing for Forbes.com said:

"... the Court has homed in on the central issue that has been presented by the same-sex-marriage (legal) debate from day one: do state governments violate the basic principle of 'equality under law' â€" constitutionally codified in the Equal Protection Clause [of the 14th Amendment to the U.S. Constitution] â€" when they grant marriage licenses only to opposite-sex couples? (Or when they recognize out-of-state marriages only between opposite-sex couples.) That is, the government needs a good reason to treat people differently. So is denying marriage licenses to same-sex couples more similar to denying driver’s licenses to blind people or to denying business licenses to blind people? Are the state’s justifications for treating couples differently based on sexual orientation good enough? ₂

Sponsored link.

The two questions at the core of these cases.

Although all four cases deal with marriage by same-sex couples, they ask two separate questions:

• Should states be required marry same-sex couples?

and

• Should states be required to recognize the marriages of same-sex couples who have been married out-of-state?

Among the four states involved:

• The Michigan case (DeBoer v. Snyder, No. 14-571), was filed by April DeBoer and Jayne Rowse. They are two nurses who are raising four special-needs children. The laws in their state do not allow both same-sex parents to adopt all four children. Each parent ended up adopting two children and being recognized by the state as only a friend of their other two kids. Such lack of recognition could be a life-or-death matter in the event of a medical emergency. The parents launched a lawsuit to allow them, as a couple, to adopt all four children in the same way that opposite-sex couples can.
  
  Michigan District Court Judge Bernard Friedman suggested to April and Jayne that their main problem was not with the adoption laws of Michigan. He recommended that they re-file their complaint seeking permission to marry. If they could marry, then each of them could be fully recognized as parents of all four of their children. Their case was argued on the familiar basis -- the Due Process and Equal Protection clauses of the 14th Amendment to the U.S. Constitution which require governments to treat people equally.
  
  During the testimony at the court hearing, two opposing views of laws in the U.S. were expressed:
• Assistant Attorney General Joseph Potchen said that the plaintiffs are doing a "wonderful job" raising four young adopted children. But he believes that an amendment to a state Constitution or activity by the state legislature -- not a federal court -- is how such matters should be resolved. He said:

  "That is the appropriate forum for the change they are seeking."

  He also said:

  "There is no fundamental right to marry someone of the same sex. It's our position that the people of Michigan should decide this issue, not the federal courts."

• Attorney for the plaintiffs, Carole Stanyar, disagreed, saying that:

  "Fundamental constitutional rights should not be subjected to popular election. This is the defining civil-rights issue of our time. This is the last remaining group in our society denied equal protection under the law." _3,4

Webmaster's comment:

IMHO, Ms. Stanyar is clearly wrong. Even if the marriage issue is resolved by the high court, there is at least one other group being denied equal protection: transgender persons and transsexuals.

• The Ohio case (Obergefell v. Hodges, No. 14-556) and the Tennessee case (Tanco v. Haslam, No. 14-562) ask only whether states must recognize gay marriages that have been legally solemnized out-of-state.
  
  
• The Kentucky case (Bourke v. Beshear, No. 14-574) raises both questions. Among the plaintiffs are four same-sex couples who had married out-of-state and want their marriages recognized in Kentucky. Two additional plaintiff couples are unmarried and wish to marry in Kentucky where they live.

2015-FEB: Current status of SSM in the U.S. the and timing of the case:

As of mid-2015-FEB, same-sex marriage is currently available to about 72% of the American population who live in one of the 37 states or the District of Columbia where marriage equality has been attained. It is also avaiailable in some parts of Missouri. It is currently banned in the above mentioned four states and in eight others as well as all five American territories.

The Justices have set various deadlines for briefs and rebuttals by plaintiffs and defendants, with the final documents to be filed with the high court on or before APR-17 at 2 PM. The cases will be heard in a 2.5 hour session on APR-28. ₅ The high court is expected deliver its ruling in late June.

This topic continues in the next essay, Part 2.

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

1. Chief Justice Earl Warren, "Loving v. Virginia, Legal Information Institute, at: http://www.law.cornell.edu/
2. Ilya Shapiro, "Did Supreme Court Telegraph Its Ultimate Ruling on Gay Marriage?," Forbes, 2015-JAN-17, at: http://www.forbes.com/
3. Ed White, "Michigan Gay Marriage Ban Ruling On Hold For Supreme Court," 2013-MAR-07, at: http://www.huffingtonpost.com/
4. John Wisely, "Michigan judge delays decision on gay marriage ban," USA Today, 2013-MAR-07, at: http://www.usatoday.com/
5. Oralandar Brand-Williams, "Justices to rule on same-sex marriage," The Detroit News, 2015-JAN-16, at: http://www.detroitnews.com/

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Copyright © 2015 by Ontario Consultants on Religious Tolerance.
First posted: 2015-JAN-16
Latest update: 2015-FEB-18
Author: B.A. Robinson

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