Last week gay couples filed petitions requesting that the United States Supreme Court decide whether same-sex couples have a constitutional right to get married. The petitions were prompted by a November 6, 2014 ruling by a federal appeals court in Ohio upholding the right of four states to ban same-sex marriage, contradicting rulings by four other federal courts.
The 6th Circuit’s decision related to same-sex couples in Kentucky and Michigan challenging amendments in their states which banned same-sex marriage, and petitioners from Ohio and Tennessee requesting that their states be required to recognize same-sex marriages legally performed in other states.
In October, when the Supreme Court turned down petitions appealing lower federal court decisions striking down same-sex marriage bans in Indiana, Oklahoma, Utah, Virginia and Wisconsin, there was not yet any disagreement among the federal appeals courts on the issue. However, the recent 6th Circuit ruling contradicts with 4th, 7th, 9th and 10th federal circuit decisions holding that state bans on same-sex marriages are prohibited by the 14th Amendment to the United States Constitution.
Supporters of same-sex marriage rights have often based their legal argument upon the Equal Protection Clause of the 14th Amendment of the Constitution which requires states to provide all persons within its jurisdiction with equal protection of the law. Therefore, it would be unconstitutional for a state to deny a particular category of individuals the right to engage in an activity legally permitted for other categories of individuals. Others, however, contend that marriage is a matter for the sovereign states and the citizens of those states to regulate.
The current disagreement among federal circuit courts would give the Supreme Court a bona fide reason to agree to decide on a contentious subject that it seems to have been trying to avoid — and for good reason. A Supreme Court decision on whether same-sex marriage is a constitutional right would most certainly raise the prickly issue of federalism versus state sovereignty.
On June 28, 2013, nearly two decades after the Defense of Marriage Act (DOMA) banned federal recognition of same-sex marriage, the Supreme Court’s landmark ruling in United States v. Windsor overturned the federal law on the grounds that it violated the married same-sex couple’s right to equal protection under the law afforded by the U.S. Constitution.
While the Court’s decision in Windsor included repetitive expressions of the important role that states have in regulating marriage, a Supreme Court decision applying the Equal Protection Clause to state bans on same-sex marriage could be perceived as overreaching by the few remaining states with laws prohibiting same-sex couples from getting married.
Currently, same-sex marriage is legal in thirty-two states plus the District of Columbia, with shifts occurring in three additional states. Even Judge Sutton in the most recent ruling of the United States Court of Appeals for the 6th Circuit in Cincinnati stated that, while it seems almost inevitable that American law will permit same-sex marriage, the most significant question now remaining is — who will decide?