Just over eleven years ago, the Massachusetts Supreme Judicial Court held in Goodridge v. Department of Public Health, 440 Mass. 309 (2003), that excluding same-sex couples from marriage violated the equal-protection provision of the Massachusetts constitution. The decision caused a bit of an uproar, to put it mildly, and it was not until 2008 when the California and Connecticut Supreme Courts reached the same conclusion. In re Marriage Cases, 43 Cal. 4th 757 (2008); Kerrigan v. Commissioner of Public Health, 289 Conn. 135 (2008). [Disclosure – HSK attorneys served as cooperating counsel in Kerrigan.] California’s foray into marriage equality was initially short lived as Proposition 8 amended the California constitution to define marriage as being between one man and one woman. Prop 8 was ultimately held to violate the 14th Amendment and marriage equality returned to California in 2013. Perry v. Schwarzeneggar, 704 F. Supp. 2d 921 (N.D. Cal. 2010), aff’d sub nom. Perry v. Brown, 671 F.3d 1052 (9th Cir. 2011), vacated sub nom. Hollingsworth v. Perry, 133 S. Ct. 2652 (2013).
What a difference a decade makes. Early marriage equality challenges brought cases under state constitutions to avoid federal courts like the plague. Now, the United States Supreme Court will decide in a quartet of cases from the 6th Circuit whether bans on licensing marriages for same-sex couples or recognizing such marriages from other states. Obergefell v. Hodges, S.C. 14-556; Tanco v. Haslam, S.C. 14-562; DeBoer v. Snyder, S.C. 14-571; Bourke v. Beshar, S.C. 14-574. Oral argument is scheduled for April 28, 2015, and the Court has indicated that it will release the audio the same day.
By the end of June, we should know whether marriage equality is the law of the land. The signs are hopeful. Last year, the Fourth, Seventh, and Tenth Circuits of Appeal struck down marriage bans in five states. The Supreme Court denied certiorari in all cases, which not only affected the five states in the cases but all the cases in their respective circuits. Surely the Supreme Court knew that would be the effect, and since then it has denied applications for stays of decisions in other states where marriage bans have fallen. As a result, 36 states have marriage equality (37 if you count Alabama, but that’s another story.) This compares with 13 prior to October 2014. The handwriting, as they say, is on the wall. The real question is whether the Chief Justice will join the majority who struck the so-called Defense of Marriage Act in United States v. Windsor, 133 S. Ct. 2675 (2013). Add scotusblog.com to your favorites now and be prepared to check in several times in June.
Kenneth J. Bartschi