A conference call organized by Marriage Equality USA showed extreme optimism that the U.S. Supreme Court will rule in favor of same-sex marriage later this year and perhaps will even finally recognize LGBT people as a “protected class” that deserves heightened scrutiny in all related cases.
QSaltLake editor Michael Aaron, however, asked the experts in the call to talk about what would happen if the “worst-case scenario” were to happen and the court rules against same-sex marriage. Would those who married in Utah and other states still be married later this year? Would those who haven’t yet married still be able to marry? Or would the laws that were on the books before the court decided not to hear same-sex marriage appeals, including Judge Robert Shelby’s decision that Amendment 3 and all other laws on Utah’s books that limited marriage to opposite-sex partners, come back to life?
John Lewis, Marriage Equality USA Director of Legal and Policy, noted that the language of the Windsor ruling that overturned portions of the Defense of Marriage Act in 2013 was very strong.
“First, two years ago in the Windsor decision, the court used very powerful language when they overturned DOMA,” Lewis said. “Justice Kennedy wrote about how not accepting same-sex marriages ‘humiliates tens of thousands of children now being raised by same-sex couples’ and called DOMA a federal law motivated by a ‘bare … desire to harm’.”
“This is VERY strong language and I cannot imagine that he could back away from what he put out to the world in that ruling.” Lewis continued.
Clyde J. Wadsworth, who was co-counsel on Romer v Evans — a 1996 case that determined a Colorado amendment that refused gay, lesbian and bisexual citizens the ability to argue they were a protected class, said his thoughts while being asked this question made him even more optimistic the court would side with marriage equality.
“If the court ruled against [marriage equality], it would be a huge mess,” Wadsworth said. “The questions about what the states which were court-ordered to recognize same-sex marriage would start all over again. What would happen to marriages already occurred? What about people who move to other states? What would be the resolution for all those already married? It makes me feel positive about what the result will be. The court knew that it would be a huge mess to go back, once all of these states started allowing same-sex couples to marry. Conservatives on the court would never have let this happen if they thought they could get Justice Kennedy to rule in their favor. It gives me a lot of hope. There is no certainty of course, but this puts me back to my optimism in how this is going to happen.”
Joshua A. Newville, the lead attorney representing 13 same-sex couples in challenges to North and South Dakotas’ bans on same-sex marriage, echoed the sentiment that by not deciding the cases last year, the court has actually decided the cases.
“It is extremely unlikely that the court will rule against marriage equality,” Newville said. “The practical effect would be that states which passed same-sex marriage laws already, and those where the decision was made at a state court level, would be fine. States [like Utah] where a federal judicial decree gained them marriage equality, in the immediate term would be fine, unless someone with standing tried to challenge the decision to reverse it. That would be a tricky concept. These are the reasons we believe that there is no way the court could rule against us. No one really wants to answer this question, because it is simply too tricky.”
“In order to get standing to go to the federal courts and get a ruling that a state law is declared unconstitutional reversed, they would have to show that they are being harmed in some way,” Lewis added. “That would be extremely difficult. Further, there are complicated state and federal laws. This would not be automatic at all. They would have to get back into a court to get a ban enforced.”
Lewis also offered solace to same-sex couples who have gotten married since the bans were overturned.
“People who got married since the federal order that a state’s laws barring same-sex marriage was unconstitutional, I think those people should feel very safe that their marriages will remain intact,” Lewis said. “There is a theoretical vulnerability, and those in certain positions should take efforts to reinforce and protect their legal rights.”
Lewis went on to say that he believes that the court will not do a “half step” like they did in 2013 with Windsor and Prop 8 decisions.
Asked about the possibility of Kennedy changing sides in the decision because he supports states’ rights, all on the call said that there is no likelihood of that.
“Justice Kennedy starts the discussion of states’ rights in the Windsor decision by saying the states’ rights to define marriage are subject to the Constitutional guarantees of the rights of individuals,” Wadsworth said. “If states were completely in charge of marriage laws, they could enact laws to ban interracial marriage, which is obviously not the case.”
“This is an obvious clue that he is leaving open the possibility that state marriage laws will fall if the court concludes that individual rights are violated by banning gay marriage,” Wadsworth continued.
“Kennedy’s words were incredibly powerful,” Newville said. “It would be hard to imagine someone who used that kind of language on marriage in a court decision — that marriage is the coming together for better or worse; that denying the right to marriage tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition; an unstable position of being in a second-tier marriage; the differentiation demeans the couple, whose moral and sexual choices the Constitution protects — it is hard to imagine how Kennedy and the others will make that Constitutional.”
Peggy Tomsic, lead counsel for Utah’s successful challenge of Amendment 3 and other state laws that prohibit same-sex marriage, was also positive in a separate conversation. She says that those wondering how the court will respond is like “everyone reading tea leaves and hoping for the right outcome that brings the fairness and equality to the entire nation that now exists in the 36 states in which same sex marriage and marriage recognition is required, including Utah.”
“From my personal perspective, it is difficult to imagine how the Supreme Court can issue a ruling that calls into question all the marriages that have occurred as a result of its failure to grant the petitions which it denied in October, particularly in light of the harm that results from marriage discrimination as recognized in Windsor,” Tomsic said. “That result would create additional equal protection, as well as state law and other constitutional issues. In addition, public opinion, including in Utah, now is in favor marriage equality. The sky has not fallen and the earth has not ended with marriage equality. Life has gone on as usual except same sex couples and their families are living their constitutional rights for their first time in their lives.”
The court will be answering two specific questions:
1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
2) 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?
It is expected that a hearing will take place in late April and that a decision will be released by the end of June.
In time for many larger Gay Pride Days.