Thursday, June 04, 2015

Waiting for the decision on marriage equality

One of the most immediate and impactful decisions affecting the lives of Americans -- besides the ruling on Obamacare subsidies, of course --  will be the SCOTUS's call on gay marriage, due before the end of this month.  (The Fifth Circuit is also deliberating the question and may announce its decision prior to the Supreme Court's.  It won't have the final say, of course.)  Gatherings are planned around Texas to celebrate anticipated good news; Katie Couric recently interviewed one of the lead plaintiffs, Jeff Obergefell.

His case, Obergefell v. Hodges, rests on two questions. One is whether  the Constitution requires a state where same-sex marriage is not legal to recognize a marriage licensed in a state where it is legal. The other question is whether the Constitution requires states to license marriages between two people of the same sex — in other words, whether same-sex marriage should be legal nationwide.

The case will likely stand in the history of legal annals alongside iconic civil rights cases like Brown v. Board of Education and Roe v. Wade.

SCOTUSblog’s Kevin Russell says if the court rules in favor of the legality of same-sex marriages on both of the questions that Obergefell v. Hodges asks, the implications could extend far beyond marriage. 

 “This could be a decision that says that it is generally unconstitutional to discriminate on the basis of sexual orientation in every sphere,” says Russell. “And if the Supreme Court holds that, then this will be a huge case. It'll be the ‘Brown v. Board of Education’ for sexual orientation. It will mean that discrimination on the basis of sexual orientation, at least by states and by the federal government, is unconstitutional across the board.”

Obergefell’s case, however, also poses an unlikely danger to proponents of same-sex marriage. Currently, 37 states and Washington, D.C., have legalized same-sex marriage. However, in 21 of those states, it is only legal because courts ruled state bans unconstitutional. If the Supreme Court rules against him, and additionally goes so far as to say that the Constitution does not protect marriage at all, those rulings could be in jeopardy.

Experts say that outcome is largely unexpected, but they concede that this scenario could be a major setback for gay couples. Same-sex couples who are now legally married in 21 states could suddenly lose their legal status. As Russell says, “It would be a huge mess.”  

That fear is not lost on Obergefell, who says he “absolutely” shares that concern. “I think there would be a certain level of pandemonium in the country. I mean, how could there not be, because suddenly, again, you're creating this second class of citizens.”

And so we wait (hopefully to celebrate).  Update: Charles has more on the preparations being made at various Texas county courthouses.

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