Supreme Court Possibilities

On January 16, 2015, the Supreme Court announced that it would hear the appeal of four cases regarding marriage equality from the Sixth Circuit. In November, the Sixth Circuit became the first appellate court to uphold same-sex marriage bans, thereby creating a split within the appellate courts and making it more likely for the court to ultimately agree to hear an appeal on the issue of marriage equality.

The questions presented to the high court by the Sixth Circuit cases are as follows: (1) “Does the Fourteenth Amendment require a state to license a marriage between two people of the same-sex?” and 2) “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?” Thus, essentially the court will answer the questions of whether same-sex marriage bans are unconstitutional and separately, whether a state that bans same-sex marriages can lawfully refuse to recognize such a marriage from another state.

The court will hold oral arguments on these cases in late April. Oral arguments will last 90 minutes for the first question noted above and 60 minutes for the second. The court is expected to issue a decision in late June.

We have received many questions from people inquiring about the consequences of the Supreme Court’s possible rulings.  There is no way to predict how the Court will rule but I have set forth the consequences of some potential rulings below.

1. The Supreme Court rules the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples.

If the Court issues this ruling, then we will essentially have marriage equality.  Undoubtedly, there will still be some states that resist but it will likely be a futile effort on their part. Additionally, it will be yet another layer of case law ruling that denying rights to LGBT citizens is unconstitutional. Such a ruling may not have a direct impact on discrimination faced in other areas of law and life.  However, depending on how the Court tailors its ruling, it is certainly helpful authority moving forward as we battle discrimination in employment and public accommodations.

2. The Supreme Court rules that the Fourteenth Amendment does not require states to issue marriage licenses to same-sex couples, i.e., same-sex marriage bans are constitutional.

The consequences to this ruling are a little more complex.  In those states where marriage equality came through a vote of the people or a court ruling based on a state’s constitution, i.e. New Jersey and New Mexico, the Court’s ruling in this regard would have no impact and marriage equality would remain.

With regard to those states where marriage equality came through a federal or state court ruling based on the federal constitution (via the Windsor decision), those states would continue to have marriage equality until someone with standing moves to re-open the previous lawsuit and asks the court for a ruling based on the Supreme Court’s decision. It is possible that no-one in some of those states will take such action and therefore, marriage equality will remain. As many recall, in California, following the Supreme Court’s decision that the parties appealing the lower court ruling striking down Proposition 8 did not have standing, no-one with standing, such as a state official, chose to continue the appeals and marriage equality continues in California.

In Colorado, the most obvious person with standing to reopen the previous litigation is the state Attorney General. In November 2014, Colorado elected Republican Cynthia Coffman. Previously, Ms. Coffman’s public statements indicated that as Attorney General, she is required to enforce the law of Colorado and therefore, would enforce the marriage ban. Whether that will remain her stance should these circumstances come to pass remains to be seen.  If this occurs, the earliest the question of marriage equality can be on the state ballot is November 2016.

Marriages that occurred in the affected states in between the lower federal court rulings and any action to reopen and reverse the previous decisions would in all likelihood remain valid.

3.  The Supreme Court rules that the Fourteenth Amendment does not require states to issue marriage licenses to same-sex couples but also rules that states are required to recognize same-sex marriages lawfully entered into in other states.

If the Supreme Court issues this ‘split’ decision, then everything set forth in section two above will apply. Additionally, however, each state will be required to recognize same-sex marriages performed in other states where same-sex marriages are permitted.  Further, the non-permitting states will have to recognize said unions as actual marriages and not some other legal relationship, such as a civil union.  Thus, Colorado same-sex couples could travel to New Mexico, Idaho, New York, etc. and get married and upon their return, this state would have to recognize their union as a marriage.