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January 16th, 2015

The Supreme Court will Review Same-Sex Marriage Cases. What Happens Next?

The Supreme Court announced today it has granted review of four federal court cases dealing with the constitutionality of state bans on same-sex marriage. Last November, the Sixth Circuit (which is the highest federal court of appeals in that region before the Supreme Court) upheld the constitutionality of same-sex marriage bans when deciding this case, and split from every other federal court which declared similar bans unconstitutional. By granting review, the Supreme Court may finally put this issue to rest on a national level, but there is still a long road ahead and nothing is for sure when it comes to the Supreme Court.

The questions that will likely be raised are whether same-sex couples have a fundamental right to marry, and if same-sex marriage is not a fundamental right, does the state ban on same-sex marriage accomplish a legitimate government purpose and is reasonably related to that purpose. This is a Due Process issue under the Fourteenth Amendment. The Supreme Court had previously ruled that the right to marry was a fundamental right when it struck down a ban on interracial marriages in Virginia, but opponents of same-sex marriage claim that ruling was only meant to apply to “traditional” opposite-sex marriages. If the Court finds that the fundamental right to marry applies to same-sex couples, then the highest level of scrutiny will apply to the review of the state law. The government must then prove it had a compelling purpose behind the law, and must show that the law is necessary to achieve the purpose.

The state’s main argument is for the promotion and protection of optimal child rearing environments. The state bans on same-sex marriage is discriminatory on its face since it applies only to same-sex couples. Under Equal Protection analysis, the Court will have to determine which level of scrutiny to apply. The Court will likely approach this analysis with the same level of scrutiny that it used when allowing a female applicant to enroll in an all male state military college. The Court determined the state’s denial of females in this military academy was based on stereotypes about the female gender. Likewise, state bans citing optimal child rearing as their justification have been based on stereotypes that a male and a female parent alone can provide a nurturing environment for children due to their innate characteristics. The Court will apply standard of scrutiny that would require the state to prove exceedingly persuasive justification for their ban and that the law was sufficiently tailored to achieve their goal.

The plaintiffs would only need to prevail in one of their arguments, either Due Process or Equal Protection, for the Court to rule that the law is unconstitutional. If they do, the effect would immediately overrule all state and federal court decisions which upheld same-sex marriage bans throughout the country, and strike down all same-sex marriage bans based on similar justifications.

The plaintiffs in this case, and the companion cases will now have 45 days to submit their briefs to the Court. These briefs are the written arguments and supporting law from which the Court will primarily base its decision. The state will then have 45 days to submit its reply briefs. After this period, the Court will hear the oral arguments before what will no doubt be a crowded courtroom. This may take place in late March or early April 2015. Sometime thereafter the Supreme Court will make its decision. The tradition is for all cases heard in the term to be decided before they break for the summer, usually just prior to the 4th of July holiday but there is a small chance given the importance of this decision that the case could be held over for the next term and the decision announced later in the year or even the following year.

In either case, the end appears to be in sight, and 43 years since the Supreme Court first had the opportunity to make a decision on this issue, they finally will.