In a much-anticipated move, the US Supreme Court on Friday agreed to decide the long-running national debate over same-sex marriage.
The action sets the stage for a potential landmark decision by late June.
The case could become a watershed event for gay men and lesbians in their struggle for equal treatment, recognition, and protective civil rights.
For religious and political conservatives, it represents yet another battle to preserve the traditional man-woman definition of marriage and to preserve a special status accorded to a husband and wife raising their own children in an intact family unit.
In recent years, American public opinion has shifted dramatically to embrace a more expansive view of marriage, with roughly 55 percent of respondents now supporting same-sex marriage.
The legal issue at the center of the case is whether state governments retain the sovereign authority to determine their own marriage laws, including defining marriage as a union of one man and one woman, or whether the US Constitution requires that every state embrace a broader view of marriage, one without regard to the sexual orientation of prospective spouses.
The Supreme Court has never directly addressed that issue. Nonetheless, within the past year four federal appeals courts and more than two dozen federal judges have struck down same-sex marriage bans in 17 of the 31 states that had passed statutes or constitutional amendments upholding traditional marriage laws.
In contrast, during the same year-long period two federal judges, in Louisiana and Puerto Rico, and one federal appeals court, the Cincinnati-based Sixth Circuit, have upheld existing bans on same-sex marriages. The Sixth Circuit ruling applies in four states: Michigan, Ohio, Tennessee, and Kentucky.
As a result of the conflicting rulings, same-sex marriage bans remain in place in certain jurisdictions in the US but not in others.
Now the Supreme Court has agreed to resolve the split and decide the issue for the entire country.
If the high court rules that the US Constitution requires states to permit and recognize same-sex marriages, individual states would be forced to eliminate existing state constitutional amendments and statutes limiting marriages to one man and one woman.
If, on the other hand, the court rules that states retain the power to define marriage, some same-sex marriage bans may remain in place and earlier judicial decisions striking down marriage bans could be reversed.
Currently, 36 states are issuing marriage certificates to same-sex couples. Eight of those states embraced same-sex marriage by enacting legislation. Three other states adopted same-sex marriage laws by passing ballot initiatives. In the vast majority of states with same-sex marriage – 25 so far – the change has been imposed by judicial decisions.
Lawyers seeking to uphold traditional marriage laws argue that any changes in the definition of marriage should be left to the democratic process at the state level through voter initiatives or new legislation.
Gay rights advocates have argued that rights protected by the US Constitution are a guarantee of liberty that cannot be limited by popular vote.
In a somewhat unusual move, lawyers on both sides of the debate encouraged the justices to take up one or more same-sex marriage cases.
Usually the winning party in litigation will suggest the high court bypass their case to preserve their victory.
But the stakes in the same-sex marriage debate are national in scope and potentially monumental in terms of Supreme Court jurisprudence.
Although they won their cases in the Sixth Circuit, state attorneys general from three states – Michigan, Ohio, and Kentucky – urged the Supreme Court to take up their cases and issue a definitive ruling.
“The present status quo is unsustainable,” wrote Ohio State Solicitor Eric Murphy in his petition to the high court.
“The country deserves a nationwide answer to the question – one way or the other,” he said.
In contrast to those three states, Tennessee Attorney General Herbert Slatery urged the court not to review the Sixth Circuit’s decision and, instead, allow the ruling to stand.
Lawyers for same-sex couples in Ohio, Michigan, Kentucky, and Tennessee who challenged the marriage bans in all four states also urged the high court to examine the Sixth Circuit decision – and overturn it.
“The circuit split forces same-sex couples in the Sixth Circuit – unlike such couples in more than thirty other states – to live indefinitely without the security and protections that marriage provides,” Louisville attorney Daniel Canon wrote in his brief to the court on behalf of same-sex couples.
“To subject individuals to such an unpredictable and arbitrary application of the law is intolerable,” he said.
Back in October, the justices were presented with an array of appeals of same-sex cases from three different appeals courts. The justices declined to hear any of them. In those cases, the appeals courts struck down same-sex marriage bans in Virginia, Indiana, Wisconsin, Utah, and Oklahoma.
It is unclear why the justices refused to take up any those cases, but the inaction meant that the underlying decisions would stand and establish binding legal precedents in each circuit court’s jurisdiction.
Justice Ruth Bader Ginsburg had offered an earlier hint that perhaps the high court would not take up a same-sex marriage case unless or until the appeals courts produced conflicting decisions.
With the Sixth Circuit’s decision upholding same-sex marriage bans in four states, a clear disagreement emerged.
In the action on Friday, the high court consolidated the four cases from Ohio, Michigan, Kentucky, and Tennessee.
The court instructed lawyers to address two questions in their legal briefs: Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? And, 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 Constitution’s Fourteenth Amendment says in part that no state “shall deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws.”
The justices are requiring the first briefs to be filed by Feb. 27 and final briefs by April 17. They did not set a date for oral argument, but the court is schedule to hear arguments the week of April 20 and the week of April 27.
The cases are: Obergefell v. Hodges 14-556, Tanco v. Haslam 14-562, DeBoer v. Snyder 14-571, and Bourke v. Beshear 14-574.