What’s At Stake on April 28th?
The U.S. Supreme Court will hear oral arguments in the marriage cases from Michigan, Kentucky, Ohio and Tennessee. All of these states have marriage bans upheld by the federal appeals court in Cincinnati in November. That appeals court is the only one that has ruled in favor of the states since the 2013 Windsor decision when the Supreme Court struck down part of the federal anti-gay marriage law that denied a range of government benefits to legally married same-sex couples. Although the United States v. Windsor did not address the validity of state marriage ban, the majority of courts across the United States said its logic goaded them to invalidate state laws prohibiting gay and lesbian couples from marrying.
For two-and-a-half hours, the court, will hear oral arguments in Obergefell v. Hodges ( Obergell, legally married to John Arthur, now deceased, is suing because Ohio refused to list him as his spouse on the death certificate). However, the proceedings will not be broadcast on radio or television or live-streamed on the Internet, nor photographed. What a bummer! We have to wait for tweets from journalists in the courtroom or be satisfied with an audio recording of the arguments by 2 p.m. on the same day.
What Are The Issues?
Question 1: Does the Fourteenth Amendment (which protects individuals against unwarranted restrictions on their liberty and requires equal treatment) require a state to license a marriage between two people of the same sex? In other words, can states define marriage as the union of a man and woman?
Marriage-right supporters believe that states lack any valid reason to deny the right to marry. State laws that don’t allow everyone to marry violate the Constitution’s guarantee of equal protection and make they and their families less than heterosexual couples. To gay marriage supporters, leaving the states to decide who can marry smacks of discrimination as in Loving v. Virginia, a case in which an interracial heterosexual couple was banned from marriage until the Supreme Court struck down race-based marriage bans in 1967.
Question 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?
States respond that they have always set the rules for marriage. Voters in individual states have settled issues with bans and policies that have changed their constitutions to limit marriage to a man and a woman. They are against courts “imposing” a solution that should be left to the political process and espouse that it is an infringement on states’ rights.
Solicitor Generals and Civil Rights defenders have specific time allotted for arguments and rebuttals for their cases. The Ohio plaintiffs in Obergefell v. Hodges are supported by amicus briefs (friends-of-the-court) from former N.F.L. player Chris Kluwe to the past Chairman of the Republican National Committee, Ken Mehlman as well as various religious denominations.
Gallup: Public Approval of Same-sex Marriage Growing
Today, thirty-six states and the District of Columbia allow gay marriage. In 2004, only Massachusetts allowed such marriages. A WashingtonPost-ABC poll released this past week found that sixty-one percent of Americans said they support allowing gays to marry. A Gallup poll released on April 24th found that nearly 2 million adults are part of a same-sex couple, of whom about 780,000 are married.
Although the Supreme Court decision is not expected until the end of June, one can hope that SCOTUS will make gay marriage the law of the land and the states with bans will be forced to end restrictions. Human dignity is on trial.
When Your Child Is Gay: What You Need To Know
For more detailed advice, see book, co-authored with a mother of a gay son and a psychiatrist, Jonathan L. Tobkes, M.D.
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