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Religious Tolerance logo

Same-sex marriage (SSM)

When will the U.S. Supreme Court issue
its ruling on same-sex marriage?

What might their decision be?

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"SCOTUS" is an acronym for "Supreme Court of the United States."
"SSM" is an acronym for "Same-Sex Marriage"

Note: The first draft of this essay was written before 2015-JAN-16.
That was the date when SCOTUS decided to hear anti-SSM bans
from four states: Kentucky, Michigan, Ohio, and Tennessee.
The essay has since been updated.

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Under what conditions has the U.S. Supreme Court taken action on similar cases in the past?

Some U.S. Supreme Court watchers believe that they have detected two patterns in SCOTUS's decisions when controversial cultural issues are involved:

  • The effect of lower court conflict: There are 12 U.S. Circuit Courts of Appeals in the U.S. One, in the District of Columbia, handles federal cases; each of the rest has jurisdiction over three to nine states and sometimes over U.S. territories. Federal lawsuits that end up at the Supreme Court are typically filed at the District Court level, and later appealed to a three-judge panel of a Circuit Court. The next step is either a direct appeal to the Supreme Court, or an appeal to an en-banc panel of the Circuit Court and often, later, an appeal to the high court. (An en-banc review involves either a large number of judges or the entire Circuit Court.) As long as the various Circuit Courts are consistent in their rulings, the Supreme Court is typically reluctant to grant certiorari -- i.e. they normally refuse accept appeals. However where there is a conflict among the Circuit Courts -- called a circuit split -- the Justices of the Supreme Court are much more likely to grant certiorari.

  • The effect of a substantial majority of states opting for change; the "golden ratio:" SCOTUS Followers have noted that when a shift in a cultural practice has occurred in about 70% of the states, either through state court activity, federal court activity, legislative action, citizen initiatives, and/or amendments to state constitutions, then the Supreme Court will often step in and make the majority practice universal across the entire U.S.

Walter Dellinger, a former acting solicitor general in the Clinton administration said:

"Historically, there seems to be a tipping point at which the justices seem more comfortable setting aside state practices. When only a third of the states still retain a practice, the court seems ready to act." 1

Justices of the Supreme Court typically select which appeals to accept late in each year. Hearings of the selected appeals are often held the following April, and decisions are announced June or early July.

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Past examples of the "golden ratio" triggering action by the U.S. Supreme Court:

  • School segregation based on race:

U.S. map showing segregated schools
Red: Segregation required; Yellow:No legislation; Blue: Optional; Green: Forbidden.

Prior to 1954, school segregation laws formed a patchwork across the U.S. as shown above. In 1954-MAY-17, in the case Brown v. Board of Education of Topeka, the Court unanimously declared that laws in 17 states requiring racially segregated public schools were unconstitutional. It is a mistake to believe that this actually caused the racial integration of schools across the country. In 2014, a study found that racial segregation is alive, well, and increasing. 2

  • Anti-miscegenation laws that banned interracial marriage:

    When anti-miscgenation laws were repealed
    Red: Repealed 1967-JUN-12; Yellow:Repealed 1948 to 1967; Green: Repealed before 1887; Grey: No laws passed.

    On 1967-JUN-12, in the court case aptly named Loving v. Virginia, the Justices of the U.S. Supreme Court voted 5 to 4 that Virginia's ban on interracial marriage was unconstitutional. This had the effect of declaring the remaining anti-miscegenation laws void and unenforceable in 16 states (shown in red) , and allowed interracial couples to marry anywhere in the country. During 1967, the vast majority (72%) of American adults were opposed to legalizing interracial marriage. Also a near majority (48%) favored criminal punishments for interracial couples who did marry.

  • "Anti-sodomy" laws criminalizing specific types of sexual behavior:

"Sodomy laws"
Red: Laws applied only to same-gender behavior; Black: Applied to same-sex and opposite-gender sex; White: laws repealed prior to 2003 by the legislature or a court ruling.

During 2003, in the court case Lawrence v. Texas, SCOTUS declared by a 5 to 4 vote that the ban on same-gender, private, adult, consensual sexual behavior in Texas was unconstitutional. This had the effect of declaring "anti-sodomy" laws void and unenforceable in 13 states. The ruling allowed lesbians, gays and bisexuals to engage in such behavior legally anywhere in the country. The decision also legalized non-procreative sexual activity among consenting heterosexual couples across the U.S.

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By mid-2015-JAN, how did the situation in the U.S. regarding same-sex marriage compare with past cultural laws?

On 2015-JAN-15:

  • Lower court conflict: During the recent past, rulings in favor of same-sex marriage have been issued by the 4th, 7th, 9th and 10th U.S. Circuit Courts of Appeal.

    However, during 2014-NOV, a three-judge panel of the 6th U.S. Circuit Court of Appeals ruled in favor of same-sex marriage bans by a 2:1 vote. This involved four lawsuits covering four states: Kentucky, Michigan, Ohio, and Tennessee. The resultant "circuit split" vastly increased the probability that the U.S. Supreme Court would become involved.

  • Same-sex marriage availability as it existed on 2015-JAN-15:

Same-sex marriage availability in the U.S. 7

Green: SSM not available; Grey: SSM available.

The "golden ratio" had been achieved.

Thus, It appeared likely that the high court would grant certiorari in the near future for one or more cases, hold hearings in the spring of 2015, and issue a decision in late 2015-JUN or early 2015-JUL that wold probably apply to the entire country. However, the Court was up against severe time constraints that could have delayed their actions by 12 months.

On 2015-JAN-15:

  • SCOTUS accepted appeals for all four marriage equality lawsuits from the 6th U.S. Circuit Court of Appeals: Kentucky, Michigan, Ohio, and Tennessee. They will allocate two and a half hours to hearings during a date in very late 2015-APR. The future happiness and security of the approximately 20 million adult members of the LGBT community, and their children, hang in the balance.

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How might SCOTUS rule?

With 9 Justices on the Supreme Court, the closest possible vote will be a 5 to 4 decision. This was the ruling reached in the 2003 Lawrence v. Texas case which decriminalized same-gender sexual behavior. It was also the ruling in the 2013 Windsor v. United States case, which declared Section 3 of the federal Defense of Marriage Act to be unconstitutional. Because of the conservative/liberal split in the Court, essentially all rulings involving moral and ethical matters are decided by a 5:4 vote.

The Justices have many options. Some are:

  • Bring marriage equality to all 50 states. They might follow the court's 1967 precedent in Loving v. Virginia when it legalized interracial marriage across the country. At that time, it found that the marriage prohibitions against interracial marriages violated both the Due Process and the Equal Protection clauses of the 14th Amendment of the U.S. Constitution.

    Chief Justice Earl Warren wrote the majority opinion for the court in "Loving," saying:

    "This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. For reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that these statutes cannot stand consistently with the Fourteenth Amendment.

    A similar ruling in favor of equality may happen again involving sexual orientation in place of race.

  • Deny same-sex couples the right to marry anywhere in the United States by reserving marriage to opposite-sex couples. That would probably mean that existing same-sex married couples would be forcibly divorced against their wishes.

  • Reinstate the states' statutes and constitutional bans on same-sex marriages and negating the many dozens of recent state and federal court decisions that have legalized same-sex marriage.

  • Allow individual states to affirm or deny the right of same-sex couples to marry, and also to require all states to recognize legal marriages solemnized by same-sex couples out-of-state.

  • Take other options that are not included above.
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Matthew Shepard's parents and a film director discuss future course of marriage among same-sex couples:

Matthew Shepard was a University of Wyoming student who was beaten, tortured and crucified in 1998. This murder became:

"... one of the most notorious anti-gay hate crimes in American history and spawned an activist movement that, more than a decade later, would result in passage of the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, (a.k.a. Matthew Shepard Act) is a federal law criminalizing bias crimes directed at lesbian, gay, bisexual or transgendered people." 4

The act expanded "... the 1969 United States federal hate-crime law to include crimes motivated by a victim's actual or perceived gender, sexual orientation, gender identity or disability. 5

His parents, and Michele Josue -- Director of the documentary film "Matt Shepard is my friend" discuss marriage equality and protection for the LGBT community:

 6

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An essay on a related topic:

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References used:

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

  1. Adam Liptak, "In Same-Sex Marriage Calculation, Justices May See Golden Ratio," The New York Times, 2014-NOV-24, at: http://www.nytimes.com/
  2. Richard Rothstein, "The Racial Achievement Gap, Segregated Schools, and Segregated Neighborhoods – A Constitutional Insult," Economic Policy Institute, 2014-NOV-12, at: http://www.epi.org/
  3. "Loving v. Virginia," Legal Information Institute, undated, at: http://www.law.cornell.edu/
  4. "Matthew's Story," Matthew Shepard foundation, 2014, at: http://www.matthewshepard.org/
  5. "Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act," Wikipedia, as on 2015-JAN-13 at: http://en.wikipedia.org/
  6. Josh Zepps, "Matthew Shepard's Mom: Clinton Got 'Bad Advice' On DOMA," Huffington Post, 2014-NOV-26, at: http://live.huffingtonpost.com/

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Copyrighted © 2014 & 2015 by Ontario Consultants on Religious Tolerance 
Originally posted: 2014-NOV-25
Latest update: 2015-JAN-23
Author: B.A. Robinson

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