Summary: Many legal scholars feel that there is only a small chance that the Supreme Court will rule that states may enforce same-sex marriage bans.
According to Pantagraph.com, “legal chaos” may ensue if the Supreme Court rules against same-sex marriage in the coming weeks. In fact, Rolling Stone predicts that a 5-4 ruling will support marriage equality across the country.
As for the chaos that may occur, same-sex weddings would cease, partly due to inconsistent lower-court decisions and often-contradictory views of government officials.
The issuance of same sex marriage has been stayed in Alabama.
Thus far, same-sex couples may legally marry in 36 states. In 20 of those states, federal judges invoked the Constitution to overturn bans on same-sex marriage.
Should the Supreme Court rule that states may limit marriage to opposite sex couples, these lower court decisions would contradict that ruling. The Supreme Court is expected to announce its decision by the end of June.
In some states, top officials seem eager to allow same-sex couples to continue to get married, no matter how the Supreme Court rules. However, some county clerks, the individuals who actually issue marriage licenses, may not agree.
In other states, the Supreme Court’s possible ruling in favor of state bans would prevent additional marriages, but may also lead to efforts to repeal marriage bans through the legislative process or by popular vote.
In 2012, President Obama announced support for same-sex marriage.
However, many think that this scenario is unlikely. The Supreme Court did allow the lower court rulings to remain in place before the court heard oral arguments on the issue. According to Howard Wasserman, a Florida International University law professor, “it would be chaos” if the highest court did not support same-sex marriage across the country. Overall, acceptance of same-sex marriage is increasing, with young Americans likely the primary driver, according to the International Business Times.
However, for those who are already married, their unions will probably be protected. Christopher Stoll, a senior staff attorney with the National Center for Lesbian Rights, said, “There’s a very strong likelihood that these marriages would have to be respected, no matter what.”
In the 16 states that allow same-sex marriage because of their own court rulings, votes, or legislative acts, these couples may continue to marry. In those 14 states that prohibit same-sex marriages, the bans may continue.
As for the 20 remaining states, many that tried to save their bans on same-sex marriage would likely be able to reinstate them. Michael Dorf, a Cornell University law professor, said, “That state can immediately start saying we’re going to deny marriage licenses to same-sex couples going forward.”
Those states include Alaska, Arizona, Florida, Idaho, Indiana, Kansas, Montana, Nevada, North Carolina, Oklahoma, South Carolina, Utah, West Virginia, Wisconsin and Wyoming.
State officials in some areas refused to predict how they may respond to the court’s ruling. Kansas Governor Sam Brownback said, “I’m just not going to speculate on what the court may or may not do.”
There has been a significant amount of confusion in Alabama on the issue.
In California, Colorado, Oregon, Pennsylvania, and Virginia, the situation may be different. Top officials did not argue against lower-court rulings that favored same-sex marriage. Instead, those states issued injunctions that forbid the states from enforcing either state laws or constitutional amendments that defined marriage as between a man and a woman.
Usually, an individual involved with the suit that led to an injunction must ask the court to reverse it. However, if the governor and the attorney general support same-sex marriage, they may not go back into court.
Gene Schaerr, an attorney who has argued for banning same-sex marriage, said that he predicts that, even in states where political leadership favors same-sex marriage, county clerks who issue marriage licenses would be protected if they denied these couples a license.
According to Schaerr, only clerks in Alameda and Los Angeles counties are bound by the injunction, which was issued in 2010 by U.S. District Judge Vaughn Walker. A Supreme Court ruling that rejected a constitutional right to marry would “free the clerks in counties other than Los Angeles and Alameda to adhere to Proposition 8,” Schaerr opined. Proposition 8 is California’s state amendment that prohibits same-sex marriages.
Cynthia Coffman, Colorado’s Attorney General, said that she supports same-sex marriage, but that voters will probably need to remove a ban on same-sex marriage from the state’s constitution. If given the chance she said she would replace the ban with protections for same-sex marriage.
And in Virginia, Attorney General Mark Herring has said that he will attempt to have the state repeal its statutory and constitutional bans.
Tom Witt, the executive director of Equality Kansas, commented, “Recent history of the past eight months, plus all the rulings of the past 20 years, don’t indicate that to us this is going to go against us. It could, but a giant meteor could fall on my head in the next five seconds.”
Source: Pantagraph.com
Photo credit: Huffington Post, gaysaltlake.com (Schaerr), law.fiu.edu (Wasserman), nclrights.org (Stoll), lawschool.cornell.edu (Dorf), 9 news.com (Coffman), Twitter (Herring)