Legal Battle Over Gay Marriage Hits The Supreme Court Tuesday

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**Co'tor Shas**

source

People have been lining up outside the U.S. Supreme Court for days hoping that they will be among the lucky ones to get a seat for Tuesday's historic arguments on gay marriage.

As of now, gay marriage is legal in 36 states. By the end of this Supreme Court term, same-sex couples with either be able to wed in all 50 states, or gay marriage bans may be reinstituted in many of the states where they've previously been struck down.

Tuesday's Supreme Court arguments focus on two questions: First, whether bans on gay marriage are constitutional; and second, if they are, whether those states with bans may refuse to recognize out-of-state gay marriages performed where they are legal.

The court has scheduled an extraordinary 2 1/2 hours of argument, and will make the audio available online later Tuesday.

Four states — Michigan, Ohio, Tennessee, and Kentucky — are defending their bans. They won their case in the lower court, and because other appeals courts threw out bans enacted in other states, the Supreme Court now must resolve the conflict.

The high-stakes legal battle is the culmination of a decades-long struggle in the courts, state legislatures, and at the ballot box. During that time, public opinion has changed, and done so more rapidly, and dramatically, than on any major social issue in memory.

In 1996, public opinion polls showed, on average, only 27 percent of the public favored legalization; this year, although many states still adamantly resist gay marriage, public opinion polls put the approval number nationally at well over 50 percent.

Tuesday's courtroom battle pits states' rights against the fundamental right to marry; it pits the traditional definition of marriage against a more modern definition; and it pits majority rights against minority rights.

Before the Court are the consolidated cases of 12 couples and two widowers. Among them are nurses, teachers, veterinarians, an Army sergeant and businessmen and women.

Many call themselves "accidental activists," because they filed lawsuits not to further a cause, but because of the way the bans affected their lives.

In Michigan, for instance, Jayne Rowse and April DeBoer have four adopted children, two with disabilities. Because the state does not allow same-sex couples to adopt, but does allow single people to adopt, each of the women has adopted two of the children.

"We have a marriage," says April DeBoer. "We just don't have a piece of paper that legally binds us to each other."

The wake-up call about their legal status came on a two-lane highway one snowy night when a truck travelling in the wrong lane veered into a field to avoid hitting them head-on. After that harrowing near-miss, they started putting wills and trusts into place to protect the children.

But there was one thing they couldn't do: make sure that if one of them died, the other would get custody of the two children who had been formally adopted by the deceased parent.

"A judge could award that child to someone else," says Jayne Rowse, "effectively making them a legal stranger to the child they've helped raise since birth."

So, in order to challenge the state adoption laws, they challenged the ban on gay marriage.

Many of the other plaintiffs in Tuesday's case are, like Rowse and DeBoer, people who adopted or had children by artificial insemination; some couples were legally married in another state but now live in a state that that bans gay marriage.

Michigan Attorney General Bill Schuette defends his state's ban as an example of democratic rule.

"Who decides: the courts or the voters?" Schuette asks, rhetorically. "There are 2.7 million people — voters — who made this decision."

But gay marriage advocate Mary Bonauto counters that this country does not put the fundamental constitutional rights of minorities to a vote.

"This is not about self-government or persuading voters," argues Bonauto. "It's about the Constitution and whether, constitutionally, same-sex couples can be denied the right to marry that all other Americans enjoy."

Arguing against her today will be lawyer John Bursch, representing Michigan and the other states. His task is to persuade the justices that Michigan has a rational justification for banning gay marriage.

"It's really not possible to say that the marriage definition Michigan has had since 1805, when it was still a territory before statehood, has all this time been irrational," Bursch says.

Mary Bonauto replies that it doesn't really matter what people thought at the time the Constitution was written because the Fourteenth Amendment, adopted after the Civil War, guarantees "equal protection of the laws."

"And this is a court that has recognized time and again that we have to look at current conditions in deciding what equality means," Bonauto adds.

Indeed, the Supreme Court has repeatedly said that marriage is a fundamental right that the state cannot abridge without some real justification. It has said that prisoners have the right to marry, and so do people too poor to make child support payments.

And most famously, in 1967, the Court struck down state bans on interracial marriage.

So what are the justifications offered by the states? They cite procreation.

"Michigan has a legitimate interest in encouraging opposite-sex couples to enter into permanent, exclusive unions within which to have and raise children," argues Bursch.

Bonauto counters that Michigan allows heterosexual couples to marry even if they are infertile, too old to have children, or don't want to.

Bursch cites other justifications, arguing that men and women bring different attributes to child rearing in a marriage.

"Having that diversity of both the mother and a father can be a good thing for children," Bursch says.

Bonauto will tell the justices that by denying same-sex couples the right to marry, states are imposing concrete hardships. Because they are not considered one family, unmarried same-sex couples have to buy two health insurance plans to cover themselves and their children; if one of them should die, the other partner and his or her adopted children are not entitled to social security benefits. And indeed, the parent whose name is not on the adoption papers could lose custody.

"Denying same-sex couples marriage means that you are increasing the number of children who are raised outside of marriage," Bonauto says. The bans in turn deny "a whole class of children that security, that protection" of marriage "and tell these children and their parents that they "are not worthy of this most important relationship in life," Bonauto says.

Bursch replies that the states are not trying to "disparage" anyone.

"It comes down to who gets to decide between competing marriage models, which many people feel very strongly about," Bursch argues. He reiterates that the choice is up to the electorate, "and if the courts start imposing their own view of what marriage should be, that's going to do huge damage to the democratic liberty principle that has always animated our Constitution."

The second question being debated in the Supreme Court Tuesday is whether states that ban same-sex marriage may refuse to recognize legal marriages performed out of state.

The standard bearer for the recognition cases, and indeed, all the cases, is widower Jim Obergefell. Because his lawsuit was filed first, all of the consolidated cases are known as Obergefell v. Hodges (Richard Hodges is the Ohio official in charge of death certificates).

It is the death certificate of Obergefell's longtime partner that is at the center of the recognition question.

Obergefell and John Arthur were together for 20 years. But by 2013, Arthur was bedridden and dying of ALS, Lou Gehrig's disease. On June 26th, the two men were watching TV as news flashed across the screen that the Supreme Court had struck down the federal law barring the national government from recognizing gay marriages performed in states where they are legal.

"I just immediately leaned over, hugged him, gave him a kiss and said, let's get married," Obergefell recalls. "It just seemed like the most perfect thing possible to do at the moment."

Friends and family quickly raised the money for a medical charter to Maryland, where gay marriage is legal. The couple exchanged vows as the plane sat on the tarmac and then headed back to Cincinnati.

Just a few days later, though, the two would learn that Ohio would not recognize Jim as a surviving spouse on John's death certificate.

"It was heartbreaking," Obergefell says.

A federal judge, acting on an expedited basis because of John's health, ordered the state of Ohio to record Jim as the surviving spouse when the time came.

Three months and 11 days later, John Arthur died, and Jim's name was listed as the surviving spouse on the death certificate.

The state appealed, and if it wins in the Supreme Court, it can reissue the death certificate without Jim's name.

At the Supreme Court Tuesday gay marriage advocate Douglas Hallward-Driemeier will tell the justices that states have long recognized each other's marriages.

"The history of state recognition of marriage is that a marriage that was valid where it was celebrated is going to be recognized in the new state, even if that couple could not have gotten married in that state," he says.

The reason for that is that people travel across state lines all the time, and their marriage travels with them. It doesn't matter, notes Hallward-Driemeier, that the wife, for instance, is too young to get married in some of the states a couple may subsequently live in or travel through.

The four states defending their gay marriage bans also defend their anti-recognition laws, but lawyers for the four declined to be interviewed.

Kyle Duncan, who represents 15 other states with non-recognition laws, argues that the issue of gay marriage is unique, especially in the context of the state's prerogative to define and regulate marriage.

"Before 2003, no state in the United States had recognized same-sex marriage," Duncan says. Indeed, before 2000 no country in the world had recognized same-sex marriage, he observes.

"If it's that new and it involves this bedrock exercise of sovereignty by states," Duncan argues, "it seems to us the right position is to say, then let the states figure it out."

A decision in the case is expected by the end of June.

Copyright 2015 NPR. To see more, visit http://www.npr.org/.

By NINA TOTENBERG

Let's hope it's successful. Gay marriage bans are not only unconstitutional, but repugnant as well.

**juraigamer**

And so it begins, another great and useless political battle of our time.

**cincydooley**

juraigamer wrote:
And so it begins, another great and useless political battle of our time.

Kinda my feelings. I don't understand why it is still an issue. Sad to see so much time and money is going to be wasted on something that should be a pretty clear right for all.

Although I'm still convinced the government shouldn't be in the "marriage" business at all.

**whembly**

juraigamer wrote:
And so it begins, another great and useless political battle of our time.

Indeed. That's why I'm hoping the SC rules favorably for gay marriages.

**Xenomancers**

As those above me have stated - this is not even an issue. Waste of the court system.

**Jihadin**

I going to predict.....the SCOTUS is going to throw it back to the State's

**Co'tor Shas**

Yep, but people still seem to love writing anti-gay marrige laws, despite the fact that they are blatantly unconstitutional.

Edit:ninjed

**Frazzled**

Co'tor Shas wrote:
Yep, but people still seem to love writing anti-gay marrige laws, despite the fact that they are blatantly unconstitutional.

Edit:ninjed

To play Devil's advocate: how are they unconstitutional?

**Dreadclaw69**

I have no issue with gay marriage, and I think that it is time that the Supreme Court recognizes this right.
I wonder will this ruling touch on the right to a religious marriage.

**Desubot**

juraigamer wrote:
And so it begins, another great and useless political battle of our time.

Damn its about time.

**Hulksmash**

So tired of this. Should be pretty open and shut considering the previous stance on interracial marriage....I honestly can't believe people can argue against it with a straight face.

Or, and I know this is crazy, instead of "Mariage Licenses" everyone gets domestic partnership licenses and people can just call entering a domestic partnership a damn marriage TO THEMSELVES...Why do tax benefits exist for something named specifically for what is 90% of the time a religious union...

Never happen because the masses would freak the hell out (mostly in the 40+ age range I'd reckon but they're the voters too) but a man can dream.

**Co'tor Shas**

Frazzled wrote:
Co'tor Shas wrote:
Yep, but people still seem to love writing anti-gay marrige laws, despite the fact that they are blatantly unconstitutional.

Edit:ninjed

To play Devil's advocate: how are they unconstitutional?

Because the supreme court said so (and to some extent the 9th circuit as well). Now I'm not an expert on constitutional law but I'd say it has something to do with treating a groups as lower than another group. Not sure exactly.
There are probebly some better explaination, as I said, I'm not an expert on constitutional law. I'll try and find something.

**Frazzled**

Co'tor Shas wrote:
Frazzled wrote:
Co'tor Shas wrote:
Yep, but people still seem to love writing anti-gay marrige laws, despite the fact that they are blatantly unconstitutional.

Edit:ninjed

To play Devil's advocate: how are they unconstitutional?

Because the supreme court said so (and to some extent the 9th circuit as well). Now I'm not an expert on constitutional law but I'd say it has something to do with treating a groups as lower than another group. Not sure exactly.
There are probebly some better explaination, as I said, I'm not an expert on constitutional law. I'll try and find something.

If SCOTUS said it was constitutional already: 1) please cite the case; 2) it wouldn't be in SCOTUS again no?

Again. how are these laws unconstitutional? Come on guy, if you're supporting a position at least try. [i][u]

EDIT: Are you thinking of the Equal Protection Clause?

**Co'tor Shas**

Frazzled wrote:
Co'tor Shas wrote:
Frazzled wrote:
Co'tor Shas wrote:
Yep, but people still seem to love writing anti-gay marrige laws, despite the fact that they are blatantly unconstitutional.

Edit:ninjed

To play Devil's advocate: how are they unconstitutional?

Because the supreme court said so (and to some extent the 9th circuit as well). Now I'm not an expert on constitutional law but I'd say it has something to do with treating a groups as lower than another group. Not sure exactly.
There are probebly some better explaination, as I said, I'm not an expert on constitutional law. I'll try and find something.

If SCOTUS said it was constitutional already: 1) please cite the case; 2) it wouldn't be in SCOTUS again no?

Again. how are these laws unconstitutional? Come on guy, if you're supporting a position at least try. [i][u]

I just looked into it a bit. The supreme court ruled DOMA unconstitutional because it violated the 5th amendment (equal protection). I know they ruled DOMA unconstitutional, just couldn't remember exactly why. And I think the fact that most of the laws get shot down before they even reach the supreme court is rather telling.

Edit: missed your edit.

**Frazzled**

I see your edit and raised you an edit! All your edits are belong to us!

Ah DOMA. Yes Equal Provision in that instance meant that if one state made it legal the other states had to recognize it (which is why DOMA was created). it is a good argument but open to slippery slope in a big way if one state legalize polygamy or something such.

I'm surprised one of the states hasn't gone off the deep end and just quit certifying marriages.

**Grey Templar**

Co'tor Shas wrote:
Yep, but people still seem to love writing anti-gay marrige laws, despite the fact that they are blatantly unconstitutional.

Ok, explain to me where in the Constitution that gay marriage, or indeed marriage in general, is protected?

Edit: Also, hilariously Ginsburg has spoken out on her stance on this issue. Bad move, she basically disqualified herself.

**Hulksmash**

Grey Templar wrote:
Co'tor Shas wrote:
Yep, but people still seem to love writing anti-gay marrige laws, despite the fact that they are blatantly unconstitutional.

Ok, explain to me where in the Constitution that gay marriage, or indeed marriage in general, is protected?

Edit: Also, hilariously Ginsburg has spoken out on her stance on this issue. Bad move, she basically disqualified herself.

I'd point out that if states are not going to allow gay marriage they need to instituted equal rights for everyone including tax, pension, and custody benefits. Outside of that I think "Marriage", outside of the ceremony, should never be mentioned and it should all be about civil unions between at least 2 people and up to a limited number (nip that polygamy thing in the bud)

**whembly**

Hulksmash wrote:
So tired of this. Should be pretty open and shut considering the previous stance on interracial marriage....I honestly can't believe people can argue against it with a straight face.

Or, and I know this is crazy, instead of "Mariage Licenses" everyone gets domestic partnership licenses and people can just call entering a domestic partnership a damn marriage TO THEMSELVES...Why do tax benefits exist for something named specifically for what is 90% of the time a religious union...

Never happen because the masses would freak the hell out (mostly in the 40+ age range I'd reckon but they're the voters too) but a man can dream.

You see... that's a reasonable compromise.

But, then again... the SJW-y crew hates it because the official documents won't have the word "marriage"... they'll argue that it's "if I can't have it, no one can!".

*shrugs*

Having that word on a state-sponsored document some how makes it more "real"???

O.o

Automatically Appended Next Post:

Hulksmash wrote:
Grey Templar wrote:
Co'tor Shas wrote:
Yep, but people still seem to love writing anti-gay marrige laws, despite the fact that they are blatantly unconstitutional.

Ok, explain to me where in the Constitution that gay marriage, or indeed marriage in general, is protected?

Edit: Also, hilariously Ginsburg has spoken out on her stance on this issue. Bad move, she basically disqualified herself.

I'd point out that if states are not going to allow gay marriage they need to instituted equal rights for everyone including tax, pension, and custody benefits. Outside of that I think "Marriage", outside of the ceremony, should never be mentioned and it should all be about civil unions between at least 2 people and up to a limited number (nip that polygamy thing in the bud)

^this guy gets it.

But, we'll never see it happen.

**Frazzled**

Marriage has been viewed as a constitutional right for some time under the US Constitution actually.

As this is not my bailiwick I'll just cite a summary:
Question: Is Marriage a Civil Right?

Answer: Recognized federal civil rights law in the United States is grounded in the U.S. Constitution as interpreted by the Supreme Court. By this standard, marriage has long been established as a civil right.

The operative constitutional text is section 1 of the Fourteenth Amendment, which was ratified in 1868. The relevant passages read as follows:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
http://civilliberty.about.com/od/gendersexuality/f/Is-Marriage-a-Civil-Right.htm

This may be better or cited from a more high fallutin law school

https://www.law.cornell.edu/wex/marriage

The rub is not if marriage is a right, but if the state may regulate what types of marriages are available. If they can't then how do you stop more extreme things such as child marriage or polygamy (which often occur at the same time) ?

**Tannhauser42**

In my opinion, it's also a violation of the first amendment with that whole bit about not passing laws establishing a religion. The reason being that the vast majority of lawmakers that oppose same-sex marriage use their religion and point to the Bible as justification for that opposition. That's just my opinion, but that's partly because I have big problems with organized religion, especially when most of them consider the "Thou Shalt Not Kill" commandment to be negotiable.
Now, if you want to put forth a strictly biological argument that marriage should be man/woman for the propagation of the species, then let's go all the way with that and require every married couple to pop out at least one kid, and if you're incapable of having kids, then you can't get married.

**Grey Templar**

I don't see marriage in that sentence. Thats woefully ambiguous.

Besides, I would argue that it is equal. Every man is free to marry a women. And every women is free to marry a man. Thats equality for everyone. Everyone is treated equally, regardless of your sexual orientation.

Automatically Appended Next Post:

Tannhauser42 wrote:
That's just my opinion, but that's partly because I have big problems with organized religion, especially when most of them consider the "Thou Shalt Not Kill" commandment to be negotiable.

Its actually "Thou shalt not murder", not "Thou shalt not kill".

**Frazzled**

It would be easier to go for the man woman argument on grounds related to children I would think.

As an interesting aside: not being able to have children used to be a reason for having a marriage annulled....

**Co'tor Shas**

Grey Templar wrote:
I don't see marriage in that sentence. Thats woefully ambiguous.

Besides, I would argue that it is equal. Every man is free to marry a women. And every women is free to marry a man. Thats equality for everyone. Everyone is treated equally, regardless of your sexual orientation.

Really not sure if you're serious or trolling right now...

**Grey Templar**

Care to point out how that isn't treating everyone equally?

**MrDwhitey**

It's GT, if he's saying something controversial/wrong/disgusting, he's being serious.

**Co'tor Shas**

Grey Templar wrote:
Care to point out how that isn't treating everyone equally?

Because marriage is not about individuals, but couples. Marriage provides tangible legal benefits to couples.

**Grey Templar**

Co'tor Shas wrote:
Grey Templar wrote:
Care to point out how that isn't treating everyone equally?

Because marriage is not about individuals, but couples. Marriage provides tangible legal benefits to couples.

Yes, and everyone is perfectly equal in that. Any man can marry any women, and any women can marry any man, to form a couple.

How is that not perfectly equitable?

**Co'tor Shas**

Grey Templar wrote:
Co'tor Shas wrote:
Grey Templar wrote:
Care to point out how that isn't treating everyone equally?

Because marriage is not about individuals, but couples. Marriage provides tangible legal benefits to couples.

Yes, and everyone is perfectly equal in that. Any man can marry any women, and any women can marry any man, to form a couple.

How is that not perfectly equitable?

Did you not read what I wrote, or are you being willfully ignorant?. Because your argument is what it best described as "insane troll logic".

**Tannhauser42**

Grey Templar wrote:

Tannhauser42 wrote:
That's just my opinion, but that's partly because I have big problems with organized religion, especially when most of them consider the "Thou Shalt Not Kill" commandment to be negotiable.

Its actually "Thou shalt not murder", not "Thou shalt not kill".

You may not realize it, but you hit the nail on the head as to the root of the problem when I said they find it "negotiable." Too many will pick and choose which translation they want to use to best justify their actions. They'll use the modern English when it suits them, they'll use the ancient Hebrew when it suits them, etc.

**Grey Templar**

Co'tor Shas wrote:
Grey Templar wrote:
Co'tor Shas wrote:
Grey Templar wrote:
Care to point out how that isn't treating everyone equally?

Because marriage is not about individuals, but couples. Marriage provides tangible legal benefits to couples.

Yes, and everyone is perfectly equal in that. Any man can marry any women, and any women can marry any man, to form a couple.

How is that not perfectly equitable?

Did you not read what I wrote, or are you being willfully ignorant?. Because your argument is what it best described as "insane troll logic".

I read what you wrote.

Yes, the government gives benefits to couples. And everyone has an equal chance to be a couple. Men can marry women, and women can marry men. Again, what isn't equitable about that?

Can you answer that without resorting to personal attacks.