Last month, the U.S. Supreme Court announced it will decide on the question of same-sex marriage. The Court will rule on two issues: (1) Whether or not a state ban against same-sex marriage is constitutional and, consequently, whether there is a federal right to same-sex marriage under the U.S. Constitution; and (2) Whether or not a state can bar recognition of same-sex marriages performed in states where the practice is legal. As historic as this decision will be, it will not end the debate on marriage; rather, it will determine new grounds for the continuing legal and cultural battle on marriage.
Arguments will be heard this April, and it is anticipated that the final decision will be handed down in June, 2015. The four cases that will be reviewed by the Supreme Court are: Obergefell v. Hodges (Ohio) and Tanco v. Haslam (Tennessee), challenging state laws barring recognition of out-of-state same-sex marriages; DeBoer v. Snyder (Michigan), challenging the state’s ban on same-sex marriage; and Bourke v. Beshear (Kentucky), which challenges both the state’s same-sex marriage ban and its restriction against recognizing out-of-state same-sex marriages.
There are many possible outcomes of the upcoming Supreme Court case, but two “win all” scenarios are worth considering here:
(1) The Court could strike down state laws that: ban same-sex marriage, define marriage as between one man and one woman, or restrict the recognition of out-of-state same-sex marriages as unconstitutional and in violation of a new right to same-sex marriage.
Such a ruling would force a nation-wide re-definition of marriage and create a new fundamental constitutional right to same-sex marriage. It would establish that the Constitution requires the states to issue marriage licenses to same-sex couples.
In true Roe v. Wade style, such a decision would legalize same-sex marriage in all 50 states, overturning all current state laws defining marriage as between one man and one woman. These state laws, which reflect the beliefs and values of the American citizens residing in those states, were formed by the will of the People and duly enacted through the correct channels of the democratic process – either through elected representatives or voter ballot initiatives.
The Court would be acting outside the proper scope of its authority if it rules this way, as it is the jurisdiction of the states to regulate marriage. Taking away the authority of the states to govern themselves on this issue would fly in the face of long-standing Supreme Court precedent set in Baker v. Nelson (1972) and reaffirmed in U.S. v. Windsor (2013) that the validity of state laws defining marriage simply is not a federal question.
(2) Or, the Court could uphold the constitutionality of state laws that: define marriage as between one man and one woman, ban same-sex marriage, or restrict the recognition of out-of-state same-sex marriages.
Such a ruling would re-affirm that there is no fundamental right to same-sex marriage under the Constitution. This decision would respect the essential authority of the states to shape their own marriage policy free of federal intrusion, as both Baker and Windsor have held.
Deciding this way would overturn federal circuit court rulings that struck down and invalidated duly-enacted state laws defining marriage as between one man and one woman. Marriage laws would then continue to be made on a state-by-state basis. The on-going marriage battle will return to the legislature and ballot box, where the democratic process will take its proper course.
Supreme Court precedent recognizes that the marriage question is best left to the democratic consensus, and that this issue is for the people to decide, not the courts.
What Of The Baker, Florist And Candle-stick Maker?
These two scenarios are interesting because even with a “win all” result, we can see that religious liberty lawsuits and efforts to enact conscience protections will continue. If same-sex marriage is legalized throughout the country in one fell swoop, business owners with religious and conscientious objection to same-sex marriage will have a heightened need for legal protection. Legislators will need to scramble to enact religious liberty exceptions to anti-discrimination laws that will be extended to include married same-sex couples. Courts will be flooded with religious liberty cases brought by conscientious business owners who provide services for any aspect of a wedding, as well as social service agencies (adoption, marriage and family counselling, etc.) that provide services relating to family life.
In addition, non-profit organizations, schools, Catholic institutions, and any other establishment that operates in a way that refuses to acknowledge same-sex marriages and espouses a belief in the immorality of homosexual behavior could be in danger of closing down, as they could be subject to civil liability under anti-discrimination laws, denied government benefits or stripped of tax-exempt status for operating in a way that has been determined by the courts to be “contrary to the public interest.” Individuals, such as professors and teachers, could also be in danger of losing their jobs if they speak or teach against the validity of same-sex marriage or on the immorality of homosexual behavior. Indeed, speaking or operating an organization in a manner that is unsupportive of homosexual behaviour and marriage could soon be considered a “hate crime .”
In short, it is good that the Supreme Court is at last giving marriage its day in court, in light of the whirlwind of litigation that has clouded the lower courts in recent years. However, the marriage debate will not end with the Court’s ruling, regardless of which way the ruling falls. Whatever the decision, those who are unhappy with it will continue to petition the courts with calls for protection for, or from, religious liberty and anti-discrimination. Continued vigilance will be needed from those wishing to defend traditional marriage and all that supports it.