by Megan Smith
The Supreme Court of the United States will hear oral arguments in a challenge to state bans on same-sex marriage on April 28.
The high court will be faced with two questions presented in this case: Does the 14th Amendment require a state to license a marriage between two people of the same sex? And does the 14th Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed in another state? The first question will be allotted 90 minutes during arguments, while the second question will have 60.
The case, deemed Obergefell v. Hodges, is the product of six legal challenges from four different states—Michigan, Ohio, Kentucky, and Tennessee—consolidated into one. In November 2014, the U.S. Court of Appeals for the 6th Circuit—which includes these four states—became the only federal appeals court to uphold bans on same-sex marriage, prompting the U.S. Supreme Court to consider hearing the case. Prior to the appeals-court decision, Justice Ruth Bader Ginsburg explained that if the 6th Circuit did indeed uphold the bans, causing a “circuit split,” it would create “some urgency” for the high court to weigh in on the matter. In January 2015, the Supreme Court agreed to hear arguments on the case.
Following the announcement of the April hearings date, Google, Inc., American Airlines Group, Inc., Goldman Sachs Group, Inc., and 376 other prominent businesses joined together to file a friend-of-the-court brief in favor of same-sex marriage. The Human Rights Campaign also filed a historic “people’s brief,” boasting more than 200,000 signatures calling for the high court to expand marriage equality nationwide. The first signature on HRC’s brief belonged to Edie Windsor, the 85-year-old lesbian who was victorious in striking down a key section of the Defense of Marriage Act in 2013. Even some prominent conservatives, such as former National Committee Chairman Ken Mehlman and billionaire David Koch, filed an amicus brief in support of same-sex marriage, stating that “conservative values are consistent with—indeed, are advanced by—affording civil marriage rights to same-sex couples.”
Marriage equality opponents, however, are not backing down. In recent months, outliers such as Texas senator Ted Cruz, Louisiana governor Bobby Jindal, and former Arkansas governor Mike Huckabee have reiterated that they would still like to see a constitutional amendment banning same-sex marriage nationwide. Court rulings in favor of marriage equality are “a real danger to our liberty,” Cruz said.
At press time, the question remains as to who will be arguing this issue in front of the Supreme Court. LGBT-rights activists continue to debate as to whether a local attorney (who is already familiar with the case’s couples) or a national expert on equality law is best for the job. “There is a feeling that the advocate should have a strong connection to the community,” Columbia Law School professor and former Lambda Legal attorney Suzanne Goldberg told The National Law Journal. “That’s not to say that the advocate has to be gay, but the sense that he or she should have long experience handling gay rights cases, as well as experience arguing before the Supreme Court.”
Currently, 37 states plus the District of Columbia have legalized marriage equality, although the Supreme Court of Alabama continues to defy a federal court decision that cleared the path for same-sex marriages to begin in the state.
After a San Antonio-based federal judge ruled Texas’ ban on same-sex marriage unconstitutional in February 2014, the case was appealed to the U.S. Court of Appeals for the 5th Circuit. The appeals court heard oral arguments in the case in early January 2015, but has not yet issued a ruling. It is uncertain whether that court will rule prior to the Supreme Court’s impending decision.
Audio transcripts of the April 28 Supreme Court arguments will be released later that day on supremecourt.gov. The high court’s decision is expected in late June.