U.S. Supreme Court to Weigh Right to Gay Marriage

By Mark Walsh — January 17, 2015 3 min read
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The U.S. Supreme Court will decide whether the U.S. Constitution requires the states to recognize same-sex marriage, a contentious social issue that has had broad implications for schools, students, and families.

The court on Jan. 16 granted appeals from groups of plaintiffs who challenged prohibitions on gay marriage in four states—Kentucky, Michigan, Ohio, and Tennessee. All four are covered by the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, which became the only federal appeals court among those that have considered the issue to uphold the authority of states to ban same-sex marriages or refuse to recognize those performed in other states.

Writing for a 2-1 majority on a 6th Circuit panel in November, Judge Jeffery S. Sutton suggested that it was inevitable that gay marriage would become lawful throughout the United States. But he said that the democratic process in the states on the issue should be respected.

“Behind [anti-gay marriage] initiatives were real people who teach our children, create our jobs, and defend our shores,” Sutton said in the opinion.

The dissenter, Judge Martha Craig Daughtrey, said the plaintiffs who challenged bans on gay marriage “are not political zealots trying to push reform on their fellow citizens; they are committed same-sex couples, many of them heading up de facto families, who,” among other goals, want “to be welcomed as fully legitimate parents at their children’s schools.”

Since the Supreme Court in 2013 struck down a key provision of the federal Defense of Marriage Act in United States v. Windsor, the number of states permitting same-sex marriage has expanded rapidly. There are now 36 states and the District of Columbia that allow such marriages, whether through legislative or ballot action or through court intervention.

Writing for the high court in Windsor, Justice Anthony M. Kennedy emphasized that one of the effects of the challenged DOMA provision was to “humiliate ... tens of thousands of children now being raised by same-sex couples.” But the court stopped short in a companion case, Hollingsworth v. Perry, of ruling on the status of gay marriage in the states. (My preview of the two 2013 cases discussed some of the school implications of the issue.)

The challengers to the bans on gay marriage in the four states now before the high court raise various arguments relating to raising children without state recognition of their unions, including custody, insurance, and passport issues. One of their appeals states that what is at stake is “whether the Fourteenth Amendment demands the equal dignity of same-sex couples and their children.”

Meanwhile, Michigan cites an argument raised by many states defending their prohibitions on same-sex marriage: “The state has an interest in encouraging men and women to marry because of its interest in stable relationships for the procreation and raising of children,” its brief says.

Despite their victory in the 6th Circuit, all four states urged the Supreme Court to grant the appeals and settle the matter.

The Kentucky case is Bourke v. Bashear (No. 14-574), and it is the only one to involve both questions raised by the Supreme Court: whether the federal Constitution requires states to recognize gay marriage, and whether states must recognize same-sex unions lawfully performed in other states.

The Michigan case, DeBoer v. Snyder (No. 14-571), deals only with the first question, while the Ohio case, Obergefell v. Hodges (No. 14-556), and the Tennessee case, Tanco v. Haslam (No. 14-562), raise only the out-of-state recognition issue.

In a sign of things to come, 75 “scholars of marriage” who support the state bans against same-sex unions filed a friend-of-the-court brief that cites studies about the school performance of the children of same-sex parents and says “there is a lively academic debate on the differences in outcomes for children raised by man-woman versus same-sex couples.”

Many more such policy- and social science-oriented briefs are likely to be filed—on both sides—before the cases are argued.

The justices will hear those arguments in April and are expected to rule by the end of June.

A version of this news article first appeared in The School Law Blog.