The
Supreme Court announced Friday it will decide this term a historic
question about whether the Constitution requires that same-sex couples
be allowed to marry or whether states are free to limit marriage to its
traditional definition as a union only between a man and a woman.
The court will answer a question left open when the justices last confronted the issue in 2013 and said that a
key portion of the federal Defense of Marriage Act was unconstitutional
and in a separate case allowed same-sex marriages to resume in
California.
The
court Friday accepted four cases from Michigan, Ohio, Kentucky and
Tennessee, where restrictions about same-sex marriage were upheld by an
appeals court. The high court will hear oral arguments in April and
decide the issue by the time justices adjourn in June.
State bans on such unions nationwide have been struck down since the Supreme Court’s action in 2013. When the justices declined to review a clutch of those decisions this past fall, same-sex marriage proliferated across the country.
Couples
may now marry in 36 states and the District of Columbia. More than
70 percent of Americans now live in states where gay couples are allowed
to wed, according to estimates by the Williams Institute at the UCLA
School of Law.
Public
attitudes toward such unions have undergone a remarkable change as
well. Polls show that a majority of Americans support same-sex marriage,
which was not sanctioned anywhere at the turn of this young century.
After
the court’s announcement Friday afternoon, Attorney General Eric Holder
said that the Obama administration will file a friend of the court
brief asking the justices “to make marriage equality a reality for all
Americans.”
In the DOMA case, U.S. v. Windsor,
the 5-to-4 decision written by Justice Anthony M. Kennedy said the
federal government could not refuse to recognize or provide benefits to
people in same-sex marriages that were conducted in states where such
unions were legal.
Dozens
of lower court judges nationwide have read Kennedy’s opinion — in which
he was joined by liberal justices Ruth Bader Ginsburg, Stephen G.
Breyer, Sonia Sotomayor and Elena Kagan — to compel findings that state
bans violate constitutional rights as well.
Withholding federal recognition of same-sex married couples, Kennedy wrote in Windsor,
places them “in an unstable position of being in second-tier marriages”
and “demeans the couple, whose moral and sexual choices the
Constitution protects . . . and whose relationship the State has sought
to dignify.”
Kennedy,
the pivotal member of the court who most often sides with
conservatives, nevertheless has written all of the court’s modern
decisions protecting gay rights, including Lawrence v. Texas, which struck down sodomy laws that targeted gay men.
But his Windsor decision
also cited the principles of state autonomy, which states have cited in
defending laws and state constitutional amendments defining marriage as
only between a man and a woman.
“The
state’s power in defining the marital relation is of central relevance
in this case,” Kennedy wrote, but he added that was not just because of
federalism, but also because the states that gave gay couples the right
to marry “conferred upon them a dignity and status of immense import.”
He
said the history of DOMA was written to convey moral disapproval of
homosexuality and “a stigma upon all who enter into same-sex marriages
made lawful by the unquestioned authority of the states.”
Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. dissented.
Roberts wrote separately in Windsor to point out that the decision did not pass judgment on state bans.
“We
may in the future have to resolve challenges to state marriage
definitions affecting same-sex couples,” he wrote. “That issue, however,
is not before us.”
But
most lower court judges thought the logic of the majority argument
indicated that the bans were unconstitutional. And many of them cited Scalia’s caustic dissent in Windsor.
“It
takes real cheek for today’s majority to assure us, as it is going out
the door, that a constitutional requirement to give formal recognition
to same-sex marriage is not at issue here,” Scalia wrote.
Instead,
“the majority arms well every challenger to a state law restricting
marriage to its traditional definition,” Scalia wrote, and such suits
are a “second . . . shoe to be dropped later.”
Almost
everyone, however, was surprised by how quickly that shoe dropped.
Within six months, the first federal judge had struck down a ban, in
Utah. Quickly, judges nationwide, and panels of the U.S. Courts of
Appeals for the 4th, 7th, 9th and 10th circuits, struck down state bans.
Many
observers thought the Supreme Court would open its term by agreeing to
review those decisions. Instead, the justices declined, and then
systematically turned down requests from affected states that marriages
not be allowed to take place until the court provided a final answer.
Proponents
of same-sex marriage hope those actions were a signal from the court.
They contend that the delay allowing gay marriages to proliferate
provide the kind of incremental change that the court often looks for
before approving a fundamental societal change.
The
justices have given no reason for their action at the time. But
Ginsburg, who has performed several same-sex marriages since the Windsordecision, has said in interviews that there is no need for the high court to intervene when lower courts are in agreement.
That changed in November, when a panel of the U.S. Court of Appeals for the 6th Circuit in Cincinnati upheld the bans in Kentucky, Michigan, Ohio and Tennessee.
Circuit Judge Jeffrey Sutton, writing for himself and Judge Deborah L. Cook, rejected the Windsor analysis that led other appeals courts to strike the bans on same-sex marriage.
In
his decision, Sutton repeatedly returned to the principle of democratic
action, saying advocates of same-sex marriage would be better off by
persuading their fellow citizens than by asking federal judges to force
the issue.
“When
the courts do not let the people resolve new social issues like this
one, they perpetuate the idea that the heroes in these change events are
judges and lawyers,” Sutton wrote.
“Better
in this instance, we think, to allow change through the customary
political processes, in which the people, gay and straight alike, become
the heroes of their own stories by meeting each other not as
adversaries in a court system but as fellow citizens seeking to resolve a
new social issue in a fair-minded way.”
Senior
Judge Martha Craig Daughtrey said in a sharply worded dissent that
Sutton’s opinion “would make an engrossing TED Talk or, possibly, an
introductory lecture in Political Philosophy.” But she said federal
judges are required to protect the constitutional rights of the
minority.
“If
we in the judiciary do not have the authority, and indeed the
responsibility, to right fundamental wrongs left excused by a majority
of the electorate, our whole intricate, constitutional system of checks
and balances, as well as the oaths to which we swore, prove to be
nothing but shams,” she wrote.
Sutton
declined, in contrast to most other judges, to compare bans on same-sex
marriage to the prohibitions on interracial marriage that the Supreme
Court struck down in 1967 in Loving v. Virginia and said it is rational for states to want to go slowly in endorsing unions that did not exist in the nation until 11 years ago.
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