By Cheryl Wetzstein - The Washington Times - Thursday, June 25, 2015
The decades long guessing game of what the Supreme Court will do about gay marriage will end either Friday morning or early next week.
Proponents on both sides of the legalization issue are hoping for a victory, but several other theories abound about what the nine justices might do in this landmark case.
At stake are the marriage laws of 14 states — including Alabama — where lawmakers and voters acted to retain laws that define marriage as the union of a man and a woman.
Arrayed against them are dozens of court rulings in favor of gay marriage, backed up by hundreds of gay rights plaintiffs, gay marriage campaigns and fresh public opinion polls showing approval of the nuptials.
“It’s never wise to be certain, but we are certainly hopeful,” Mary Bonauto of Gay and Lesbian Advocates and Defenders has told supporters.
Mario Diaz, legal counsel at Concerned Women for America, however, says he cannot imagine the high court imposing same-sex marriage on all 50 states.
If Justice Anthony M. Kennedy were to be the deciding vote, “he would be invalidating the vote of millions of Americans who went to the voting booth to affirm the traditional definition of marriage,” Mr. Diaz wrote recently in The Blaze. “Think about that: One judge versus millions of citizens. One judge against history, really.”
America’s gay marriage saga started in earnest in 1990, when three gay couples sought marriage licenses in Hawaii and were denied because they were the same sex. They sued the state for discrimination based on sex.
In the ensuing decades, gay plaintiffs have sought to marry in every state. Citizens in 31 states, seeking to maintain the complementarity of marriage, voted to amend their state constitutions to keep traditional marriage.
The 2013 Windsor v. United States ruling by the Supreme Court that struck down a federal law defining marriage — in part on the basis that states set marriage laws — prompted new gay marriage lawsuits in every state.
The current lawsuit started when gay plaintiffs in Michigan, Ohio, Kentucky and Tennessee sued to marry or have their out-of-state marriages recognized. All the plaintiffs won in federal court.
However, in November, the 6th U.S. Circuit Court of Appeals overruled those cases and upheld the rights of state lawmakers to maintain their marriage laws, which define marriage as only the union of one man and one woman.
Gay plaintiffs in the four states asked the Supreme Court to overturn the 6th Circuit. Oral arguments in their combined case, Obergefell v. Hodges, were held April 28.
The high court’s two questions to address are whether the 14th Amendment — written after the Civil War to guarantee equal treatment and due process to blacks — requires states to license marriages of two people of the same sex and/or recognize same-sex marriages that are legal elsewhere.
The wide expectation among gay rights groups is that the high court will rule — must rule — that same-sex marriage is a constitutional right and must be adopted immediately coast to coast.
“Only those who are willfully blind to the common humanity of gay people today can deny what is clear under the Constitution,” Evan Wolfson, founder of Freedom of Marry, told a recent debate on Intelligence Squared.
Already counties in states without gay marriage are preparing their documents to accept gay couples, as early as within an hour of a favorable Supreme Court ruling, Freedom to Marry said.
Mr. Wolfson also told USA Today recently that he will host a massive party in Manhattan on decision day. Hopefully, it will be a celebration, Mr. Wolfson told USA Today, “but if not — a mobilization.”
State officials from the four states have been largely quiet on the lawsuit, although Michigan Gov. Rick Snyder has recently enacted a law to permit religiously based adoption agencies, which work with the state to place foster children, to retain their policies based on clear statements of faith.
In April, Michigan’s former solicitor general, John J. Bursch, argued tenaciously that the traditional definition of marriage is a rational state policy; people have the right, through the democratic process, to determine their marriage laws; and the high court should affirm the people’s rights.
Traditional values advocates are pointing to religious liberty battles that will loom should the high court nationalize gay marriage as a constitutional right. Some lawmakers have enacted or proposed laws to preserve people’s rights to opt out of participating in same-sex marriages or say things like only man-woman marriage is God’s divine plan.
Moreover, if the court does declare gay marriage a right, it will open the door for polygamy and polyandry for starters, veteran attorney Gene Schaerr told the Family Research Council earlier this year.
That’s because the 14th Amendment was enacted in the middle of a political battle over polygamy in U.S. territories, Mr. Schaerr said.
The Supreme Court didn’t use it in 1878 to legalize marriages of multiple people, he said. But now, if there is a right to same-sex marriage by virtue of the 14th Amendment’s due process and equal protection clauses, “that would also have to mean” there is “a right to polygamy,” Mr. Schaerr said.
Other theories being bandied about include:
• The Supreme Court could vote to send the case back to the 6th Circuit to re-examine it under a standard of “heightened” scrutiny instead of the rational basis standard it used. If the justices did that, the 6th Circuit would “almost certainly rule in favor of same-sex marriage eventually” and, given unity with other federal appellate courts, the issue might “never come back to the justices,” New York lawyer Chanakya Sethi wrote for Slate.com.
• The Supreme Court could decide that it “improvidently” granted review of the gay marriage cases and dismiss them without issuing an opinion.
The “whole idea of a Federalist Republic is that the states get to pass and interpret their own laws,” Ambassador Douglas Kmiec, a legal scholar, wrote on Huffington Post in April.
The numerous “religious-freedom wars” already erupting are a warning sign for the court that it is risking “over-extension” of its function in society, Mr. Kmiec wrote. When judges write a view that is either pro-gay or anti-gay, he added, it “provokes resentment from the disfavored side in ways that democratic choice for one side or other does not.”