On January 16, 2015, the United State Supreme Court granted petitions for certiorari in four consolidated cases originating in the Sixth Circuit. The briefs are due in April 2015, the argument is likely to be scheduled that month as well, and the opinion will likely be issued in late June 2015.
The Sixth Circuit’s opinion upheld the same-sex marriage bans of Michigan, Ohio, Kentucky, and Tennessee and conflicted with the opinions of the Fourth, Seventh, Ninth, and Tenth Circuits. Back in October 2014, the Supreme Court had denied review of seven cases striking down same-sex marriage bans. It came as no surprise, then, that the Sixth Circuit’s conflicting opinion garnered the attention of the Supreme Court. Justice Ginsburg had intimated that the Court would take up the issue if the Sixth Circuit’s decision did not fall in line with the other rulings. (For a general discussion on the Sixth Circuit’s opinion, see Chapter 2 of Michigan Family Law.)
In the days following the order granting cert, there were myriad articles out there discussing the issue. ScotusBlog, for example, hosted a “snap symposium,” where bloggers on all sides are weighing in. One of the most interesting articles I stumbled across was this article about the Court’s decision to specify the following two questions:
- Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
- 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?
The article’s author notes that this was unusual for the Court; instead, the Court will simply “take a case based on the petitioners’ articulation.” Commentators have speculated on the meaning of these questions, and ultimately, whether these questions tip the Supreme Court’s hand. Will the Court answer “yes” to question 2, while answering “no” to question 1? Does the first question signify a middle path focusing on states’ rights rather than individual rights? What does it mean that the Court focused on the Fourteenth Amendment specifically in its questions, but did not explicitly call out the Equal Protection Clause? Will the Court bypass the question of whether marriage is a fundamental right or whether sexual orientation is a classification subject to heightened scrutiny?
The author posits that “the only issue that need be answered [in this case] is whether state governments are justified in extending this particular license/institution only to certain types of people.” Interestingly, posing the question in that way has led some people to suggest that, if the answer is no, then perhaps the states will get out of the marriage business altogether and issue licenses to no couples, same-sex or opposite-sex. (Three counties in Florida tried to do something like this in early January 2015.) Though that scenario seems highly unlikely (and somewhat akin to the petulant child taking his toys and storming out of the sandbox), it does make one wonder what this country would look like without the institution of state-sanctioned marriage.