Two days after the U.S. Supreme Court announced that it will hear a slew of cases concerning marriage equality, Family Research Council President Tony Perkins appeared on the Fox News Channel to offer some thoughts. They weren’t very original.
“If we take down the states’ rights to define marriage for public-policy purposes – if two people who love each other can get married – I guess Ted’s OK with a story out of New York magazine this week that an 18-year-old daughter wants to marry her biological father,” asserted Perkins.
The “Ted” Perkins referred to was Theodore Olson, former U.S. solicitor general who has argued successfully in court on behalf of marriage equality. Olson did not find the comparison convincing.
"I mean, it’s very easy to say the sky is going to fall,” Olson remarked. “We’re now talking about something that’s permitted in 36 states – or 37, depending on South Dakota last week – and the District of Columbia. No harm whatsoever has been done to heterosexual marriage as a result.”
The exchange was something of a microcosm for the long-running debate over same-sex marriage. Olson calmly discussed things like the 14th Amendment and the role of the courts in upholding core rights. Perkins blathered about incest.
Although the argument is likely to be more reasoned at the Supreme Court, the debate in the court of public opinion will probably continue to be heated and emotional. And for the Religious Right, the stakes are very high.
Members of that theocratic movement have seen a steady erosion of support for their position. Massachusetts was the first state to authorize same-sex marriage in 2004. In the 11 years since then, the country has seen a seismic shift of public opinion on the matter. Polls now show majority support for marriage equality nationwide, and among younger residents, the polls are lopsided in favor of marriage equality.
Attitudes are changing even in Bible Belt states. In Alabama, a recent poll showed a 50-50 split.
The conservative Supreme Court has been inching toward an embrace of marriage equality. In a pair of rulings from 2013, the high court struck down a portion of the Defense of Marriage Act, a federal law that in part defined marriage for federal purposes as an arrangement between one man and one woman; the court also allowed a lower court ruling invalidating Prop. 8, a California ban on same-sex marriage, to stand.
But in those rulings the high court did not affirmatively state that same-sex marriage must be permitted nationwide. However, lower federal courts quickly interpreted the high court’s actions that way and began striking down state-imposed bans on same-sex marriage.
The practice is now legal in a majority of states, and, until recently, marriage equality had won a string of rulings in federal appeals courts.
That changed in November when the 6th U.S. Circuit Court of Appeals upheld same-sex marriage bans in Kentucky, Michigan, Ohio and Tennessee. That ruling conflicted with others, creating a split and inviting Supreme Court intervention.
The high court accepted that invitation the afternoon of Jan. 16. In a brief order, the court announced it will hear arguments in the four cases from the 6th Circuit. The quartet of legal challenges will be consolidated into one case that will most likely carry the name of the Ohio ruling – Obergefell v. Hodges.
In its order, the high court said arguments will be limited to two questions: Does the 14th Amendment require a state to license a marriage between two people of the same sex? And does the 14th Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed in another state? (Passed in the post-Civil War era, the 14th Amendment, among other things, guarantees “equal protection of the laws” for all citizens.)
Americans United issued a statement urging the justices to resolve the issue by applying the separation of church and state. For too long, AU opined, the issue of marriage equality has been bogged down by religious fundamentalists making explicitly sectarian arguments that appeal to the Bible or dictates by church leaders.
“At times, the discussion over marriage equality in this country has sounded more like a debate among medieval clerics than deliberations in a modern, secular democracy,” said Americans United Executive Director Barry W. Lynn. “Opponents of same-sex marriage too often point to holy books and pronouncements by religious leaders to make their case. That might fly in a theocracy, but it should have no weight in America.”
Not surprisingly, Religious Right groups felt differently. The American Family Association went so far as to issue a press release demanding that Justices Ruth Bader Ginsburg and Elena Kagan recuse themselves from the case because both of them have presided at same-sex weddings.
“Both of these justices’ personal and private actions that actively endorse gay marriage clearly indicate how they would vote on same-sex marriage cases before the Supreme Court,” blustered AFA President Tim Wildmon. “Both Kagan and Ginsburg have not only been partial to same-sex marriage but they have also proven themselves to be activists in favor of it.”
Kagan presided at a Maryland same-sex ceremony in September 2014, and Ginsburg did the same in Washington D.C., in August 2013. Same-sex marriage was legal in both jurisdictions at the time.
The AFA also praised Roy Moore, chief justice of the Alabama Supreme Court, who wrote a letter to Gov. Robert Bentley insisting that the state can ignore the U.S. Supreme Court, should it rule in favor of same-sex marriage. (See “People & Events” for more on this.)
How will the court rule? There’s no shortage of pundits willing to offer an opinion on that. Most observers point to Justice Anthony M. Kennedy as the crucial swing vote. Kennedy has ruled in favor of LGBT rights in the past and seems sympathetic to arguments that denial of marriage relegates gays to second-class citizenship.
But Kennedy’s vote can’t be taken for granted. In other contexts he has seemed open to states’ rights arguments and wary of overreaching federal power.
On a more practical level, a ruling allowing states to resurrect bans on same-sex marriage would spawn no small amount of chaos. Hard figures are difficult to come by, but it’s likely that thousands of same-sex couples have legally married in dozens of states where courts have invalidated bans. What would happen to these unions? What would be the status of the children living in them? Would these couples suddenly lose the many benefits married couples enjoy, or could they be somehow grandfathered in?
Conversely, a decision extending same-sex marriage nationwide would also spark fallout. It will undoubtedly lead to more litigation. Some owners of secular businesses and even government employees are insisting that they have a “religious freedom” right to deny service to same-sex couples. A high court ruling in favor of marriage equality will surely intensify that debate.
The Supreme Court is likely to hear the arguments in April with a decision to follow by the end of June. Already there is talk of how the decision, no matter which way it falls, might affect the 2016 presidential campaign.
One possible Republican contender, Mike Huckabee, the former governor of Arkansas, has already weighed in. Speaking on a right-wing radio show Jan. 20, Huckabee echoed Alabama’s Moore with the unusual view that states can ignore Supreme Court rulings.
“One thing I am angry about though...is this notion of judicial supremacy, where if the court makes a decision, I hear governors and even some aspirants to the presidency say, ‘Well, that’s settled, it’s the law of the land,’” fumed Huckabee. “No, it’s not the law of the land.”
The case is also likely to attract the attention of a lot of public-interest groups. Americans United, which has weighed in on all of the same-sex marriage cases in the lower courts, will offer the Supreme Court some advice as well through a friend-of-the-court brief.
“Our bottom line is simple,” said AU’s Lynn. “Opponents of same-sex marriage have had plenty of time to come up with an argument beyond ‘The Bible says it’s wrong’ or ‘My pastor doesn’t like it.’ They haven’t been able to do it. That means they should lose.”