After the U.S. Supreme Court announced in January it would hear a challenge to Michigan’s same-sex marriage ban, the court has scheduled oral hearings for April 28.
Along with reviewing Michigan’s case, the Supreme Court will review similar cases from Ohio, Kentucky and Tennessee. The Supreme Court picked up the case after the U.S. Court of Appeals for the Sixth Circuit upheld the upheld Michigan’s same-sex marriage ban last November. The Sixth Circuit Court decision reversed a March decision from the district court that struck down the ban.
University law Prof. Julian Mortenson said these cases are broken down into two categories. He said the first category involves a same-sex couple legally marrying in a state where same-sex marriage is permitted, but moving to a state where it is not permitted, meaning that the couple’s marriage is not legally recognized in that state. The second issue involves same-sex couples who live in a state where same-sex marriage is not permitted and want to get married.
“The same underlying state policy is preventing the legal recognition of marriage in either case, but the nature of the legal claims involved to the two categories of case are a little and potentially very different,” Mortenson said.
Mortenson noted that this case has significant implications, including the possibility of legalizing same-sex marriage in all 50 states.
“The Supreme Court says and always will bind every other court in the country,” Mortenson said. “So if the Supreme Court says in this case, ‘It is constitutional to allow same-sex couples to get married,’ that ruling will apply to every state that is directly involved in this case.”
Even though only four state cases are directly involved in the proceedings, if states not directly involved don’t follow this precedent, they could face sanctions.
“If states don’t quit enforcing or repeal their bans on marriage equality or their bans on same-sex marriage, it’ll be about five seconds before a court enters an adjunction in those states that aren’t involved in this case agreeing to some plaintiff’s challenge to the same-sex marriage ban that applies to their state,” he said.
Mortenson said he was hesitant to predict the outcome of the case, but noted that the legal world has hinted at an outcome without the Supreme Court’s decision. He said if an objective stance is taken based on the cases, marriage equality should be granted.
“If you look at the cases and if you look at the logic of the cases and if you apply them faithfully, I think the best current legal prediction is that the Supreme Court should rule in favor of marriage equality,” he said.
University law Prof. Samuel Bagenstos said the Supreme Court could take two possible routes to rule in favor of same-sex marriage. He said one route is a broad approach.
“They could say when laws classify based on sexual orientation those laws trigger heightened constitutional scrutiny which would mean they would have to be justified by particularly strong state interest and have to be closely connected to those interests,” he said. “Obviously if the court rules that way that will lead to a lot of momentum for anti-discrimination laws on the basis of sexual orientation to get passed.”
Bagenstos also cited a narrower route to legalizing same-sex marriage. He said the court could opt for limited reasoning, saying the states’ justifications for precluding same-sex couples from marrying are irrational.
“If they did that, the legal implications wouldn’t be as extensive, but on the other hand, I’d take that the social implications would be very similar,” he said. “Probably, the political implications would be very similar.”
Bagenstos said it is difficult to predict which route the court is going to take or even how they are going to rule.
“I, like most people, predict that the court is going to say that same-sex couples have an equal right to marry as opposite-sex couples,” Bagenstos said. “But how they are going to get there, I don’t think anybody knows.”
Bagenstos noted Supreme Court Justice Anthony Kennedy’s importance as a swing vote in same-sex marriage cases. He noted that in the time since Kennedy joined the bench, the court has made progress when it comes to ruling on the side of gay rights, citing the 1993 case Romer v. Evans, 2003’s Lawrence v. Texas and Windsor v. United States in 2013.
“In all of those cases, the court has ruled for the party that is supporting gay rights, but the reasoning in all of those cases has been very narrow,” he said. “The court has not articulated a very expansive understanding of the reasoning behind its pro-gay rights position.”
As the oral hearings near, many groups, including the Obama administration, have filed amicus briefs to the Supreme Court in support of same-sex marriage. State Rep. Jeff Irwin (D–Ann Arbor) was one of the elected officials to be included in an amicus brief sent to the Supreme Court by the Ohio and Michigan Democratic Parties.
Irwin said he was proud to join in an amicus brief that supports equal rights.
“Michigan’s ban on marriage equality and Michigan’s ban on gay and lesbian adoption has been a wrong that many of us have been trying to right for many years here in Michigan.”