June July 2016
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The Advocate

A Best-Case, Worst-Case Look at the Supreme Court's Options

A Best-Case, Worst-Case Look at the Supreme Court's Options

In just a few months, the U.S. Supreme Court will hear oral argument in four marriage equality cases, and while it's impossible to accurately predict how the nine justices may rule, it's also impossible to avoid speculating. This much is certain: Whatever the court decides will be the most important turning point ever seen in the marriage equality battle — and will radically alter the lives of millions of people.

What Exactly Will the Court Decide?
The court is going to focus on two questions, asking attorneys on both sides to address the inquiries with the merits of their individual cases. Those questions are:

  • Does the Constitution require states to issue licenses to same-sex couples?
  • Does the Constitution require states to recognize out-of-state marriage licenses from jurisdictions with marriage equality?

These questions may seem straightforward, but the court's answer could be (and probably will be) more than just a yes or no. When the justices rule, a complex decision could settle those questions while also providing detailed guidance for future litigation. That's one reason why it's so hard to predict: there are an infinite number of ways the justices can answer even the simplest of questions.

Issuing Licenses
If the court rules that the Fourteenth Amendment to the U.S. Constituion requires marriage equality nationwide, states will have little recourse but to begin issuing licenses. But the timing and nature of those licenses will be difficult to predict.

The only other time that the Supreme Court ruled on marriage licenses for gay couples was in 2013, after the court effectively upheld a lower ruling striking down California's Proposition 8, which revoked marriage equality in the state. After a series of federal courts overturned Prop. 8 — and the Supreme Court affirmed those judgements by declining to rehear the case — most observers assumed that California marriage would not begin for another month or so, based on the usual timing of the Ninth Circuit Court of Appeals, which needed to complete a few legal formalities to conclude the case. But the Ninth Circuit surprised everyone by allowing marriages to start late Friday the same week the Supreme Court ruling came down.

If the Supreme Court decides that states must issue marriage licenses to same-sex couples, it's possible that marriage could start right away in some states, while other states may take several weeks or even months to implement the ruling.

In California, state officials were eager to embrace marriage equality, and Attorney General Kamala Harris forcefully directed officials to begin issuing licenses. That probably won't happen in traditionally conservative-led states like Mississippi or Georgia — though a pro-equality ruling could take effect more  quickly in Kentucky, Ohio, Michigan, and Tennessee, the states whose marriage litigation will be heard at the Supreme Court.

Judging by the rash of administrative and legislative tactics opponents have already used to delay marriage equality in states such as Florida and Texas respectively, it's likely some state officials will try to further delay the start of marriage for as long as possible, though they'll have few legal options to do so.

If, on the other hand, the Supreme Court concludes that states are not required to issue marriage licenses to same-sex couples, it would mean significant legal turmoil. There are a few different ways that such a ruling could play out: States that had gained marriage equality through lower federal court decisions might revisit the issue, and marriage equality could be revoked. Such a decision could solidify the current patchwork of marriage laws across the nation, as the lower court rulings that granted marriage equality in states like Virginia and Utah would have to remain in place (since the Supreme Court last year declined to review those cases), but remaining states like Kentucky, Michigan, and presumably the 12 other states still banning same-sex marriage would be allowed to keep enforcing those laws.

If states were allowed to retain their marriage bans, then the only option would be to repeal the bans, most of which are enshrined into each state's constitution as a voter-approved amendment. Generally, repealing such an amendment would require legislative action and overwhelming voter approval, which would take several years and millions of dollars. And while public support for marriage equality is growing, it still hasn't climbed high enough in most of the remaining states with bans to overturn a constitutional amendment.

In addition, if the bans are upheld, it could raise questions about the legality of the licenses that have so far been issued. The Supreme Court may address this issue or could avoid it altogether. But it's likely the licenses would be recognized as valid, even if a state refused to embrace marriage equality, due to precedent that prevents states from revoking a legal marriage license after it has been issued. 

Recognizing Licenses
As with the other question, a pro-equality ruling in favor of recognizing out-of-state licenses could be fraught with questions when it comes to the timing of its implementation.

It's possible that such a ruling could go into effect right away. That would mean, for example, that couples in Nebraska who legally wed in another state could immediately apply for spousal benefits or to legally change their last names in their home state.

It's also possible that states might have some latitude to delay the implementation of the ruling, though not for long. The Supreme Court will likely determine the conditions under which its pro-recognition ruling would go into effect, but those conditions may not be clarified until lower courts seek guidance in the wake of the high court's ruling. 

It's hard to say exactly what would happen if the Supreme Court ruled that states are not required to recognize licenses from out-of-state. It would throw into doubt earlier rulings to the contrary from other federal courts, and could trigger new lawsuits intended to halt marriage recognition. The success of those hypothetical lawsuits would depend on finding a plaintiff with standing to bring such a suit — in other words, someone who could prove that they were materially harmed by the recognition of same-sex marriages. Thus far, that has proved a tough standard for equality opponents to meet in court. 

If the court rules against out-of-state recognition, marriage equality advocates would likely have to turn their attention to a slow, expensive state-by-state repeal of marriage bans, as mentioned above.

The Election
The cases are coming at a particularly volatile time, politically. A ruling on marriage equality is likely to come down in late June of this year, which is around the time the 2016 presidential primary debates will be starting.

It's fairly certain that the Democratic candidates, whoever they wind up being, will support the freedom to marry. Hillary Clinton, who has not formally announced her candidacy, has recently endorsed marriage equality. Vice President Joe Biden, who hasn't ruled out a run, famously backed marriage equality even before President Obama. Former governor Martin O'Malley, another potential candidate who has not formally announced, was instrumental in gaining marriage equality for his home state of Maryland. Then there's Virginia senator Jim Webb, who has formed an exploratory committee, and who recently said that each state should be allowed to decide marriage policy on its own.

Republican candidates have had difficulty finding a suitable talking point on marriage equality in recent months. This was once a bankable issue for them, and in 2004 the party used antigay ballot measures to drive Republican attendance at the polls. A decade later, however, antigay rhetoric is more of a turn-off to voters, and all but the most entrenched Republicans have shifted their opposition to marriage equality to an argument about states' rights rather than pure antigay animus.

After same-sex marriage became legal in Florida, for example, former governor Jeb Bush (who is considering a run in 2016) shrugged that he didn't like the ruling, but also had nothing negative to say about gay couples. Attorney General Pam Bondi simply wished everyone well and fled from the media. And Sen. Marco Rubio feigned ignorance of the issue.

With the issue of marriage equality front and center at the start of the 2016 campaign, the Republican Party's position is likely to feel more like an unwanted legacy than the effective wedge it once was to use against Democrats. A recent survey shows that 61 percent of young Republicans support the freedom to marry, plus 77 percent of young Democrats.

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