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Same Sex, Same Rights

The U.S. Supreme Court's decision not to hear appeals of same-sex marriage cases has resulted in a wave of states recognizing these unions.

Photo by Kelly Benvenuto (Flickr)

On October 6, the Supreme Court of the United States decided not to hear any same-sex marriage cases during the October term.  These cases were before the Supreme Court on appeal from Virginia, Utah, Wisconsin, Oklahoma, and Indiana.  The move directly affected these five states, but the Court’s decision not to hear these cases created a ripple effect in many other states.  As a result of the Court’s inaction, gay marriage is now legal in over thirty states, covering roughly sixty percent of United States citizens.

The Netherlands was the first country to legalize same-sex marriage in 2001.

Apart from the United States, many countries across the world have accepted and legalized gay marriage.  Britain, New Zealand, The Netherlands, South Africa, and Spain have all permitted same-sex couples to marry.

The Netherlands was the first country to legalize same-sex marriage in 2001.  South Africa, which has one of the most liberal constitutions in the world, legalized same-sex marriage in 2006.  Britain allowed same-sex couples to marry in March 2014 after years of limiting them to civil partnerships.

It seems clear that the Supreme Court wants this issue to be battled out in the lower courts.

According to Former Solicitor General Ted Olson, the Supreme Court’s decision is “a momentous victory for the constitutional promise of equality, dignity, and justice for all Americans.”  Even President Obama’s views have evolved on the issue.  In a recent interview, President Obama stated his beliefs about same-sex marriage being a constitutional right guaranteed by the Equal Protection Clause.

However, many others have expressed anger at the Supreme Court’s decision not to take up the cases in question, arguing that the Court has stepped out of line, exercising power that has not been given to them. Some argue that the lack of explanation by the Court has caused unnecessary confusion.  Regardless of the reason, it seems clear that the Supreme Court wants this issue to be battled out in the lower courts.

Cases pending before these more conservative circuits may likely lead to split authority that would force the Supreme Court to take action.

The Supreme Court’s decision to stay out of this issue is bad news for same-sex couples in the Fifth and Sixth Circuits (including residents of Texas, Mississippi, and Tennessee).  Cases pending before these more conservative circuits may lead to split authority that would likely force the Supreme Court to take action.

Stephen Vladeck, of the American University Washington College of Law, said, “[t]he fact that the Court denied review in these cases, rather than holding them to see whether the Fifth and Sixth Circuits rule differently and uphold a marriage ban, sends a very strong signal about how the Court would rule if either of those courts rule that way.  Simply put, there’s no reason for the Justices to have dumped these cases at this stage unless they’ve all-but decided to reverse any lower-court decision that upholds a ban on same-sex marriage.  Now, the question becomes whether the lower courts get that message.”

In the U.S. Court of Appeals for the Fifth Circuit, arguments for same-sex marriage in cases from Texas and Louisiana have been set for the week of January 5, 2015.  Setting the stage for the fight in the Fifth Circuit was United States District Judge Martin Feldman decision on September 3, 2014 upholding Louisiana’s refusal to recognize same-sex marriages performed legally in other states.  His ruling was the first to uphold such a ban since the Supreme Court struck down parts of the Defense of Marriage Act last year.

It is difficult to predict how the U.S. Court of Appeals for the Sixth Circuit, with a three-judge panel and Judge Jeffrey Sutton as a swing vote,would decide a same-sex marriage case.  According to Justice Ruth Bader Ginsburg, a supporter of same-sex marriage, the Sixth Circuit will be a center of attention, as the future of gay marriage bans could also be decided there with a potential split in the circuits. Ginsburg suggested the Supreme Court might refrain from taking any action unless there was a circuit split among the appeals courts, which would typically trigger Supreme Court review.

People are free to disagree, but not free to disobey the Court’s decision.

In many states across the nation, same-sex marriages have been taking place as marriage licenses are issued in the wake of the Supreme Court’s decision.  For example, in Colorado and Indiana the governors and attorneys general have uplifted their bans on gay marriage, saying that people are free to disagree, but not free to disobey the Court’s decision.

In other states, the outcome has been different.  In Kansas, some same-sex couples desiring to get married were turned away. Governor Sam Brownback issued a statement saying that he swore an oath to uphold the state’s constitution, and that he vows to uphold the amendment to the state’s constitution that defines marriage as between one man and one woman.  In South Carolina, Attorney General Alan Wilson stated that he will fight to uphold the state’s constitutional ban on gay marriage.  In West Virginia, officials are still analyzing the implications of the Supreme Court’s decision not to take up the recent cases.  Attorney General Patrick Morrisey said he is still attempting to figure out how West Virginia will be affected.

North Carolina Attorney General Roy Cooper has said that the state will stop defending its ban against same-sex marriages.  Cooper said, “[s]imply put, it is time to stop making arguments we will lose and instead move forward, knowing that the ultimate resolution will likely come from the U.S. Supreme Court.”  Legal experts said the next step would be for the proceedings to go forward in the state’s district courts.

The magistrates that have quit say that performing gay marriages would violate their religious beliefs.

On October 11, 2014, Judge Max Cogburn of the U.S. District Court for the Western District of North Carolina in Asheville began issuing licenses to same-sex couples.  However, North Carolina had its fair share of issues relating to the issuance of marriage licenses.  At least six magistrates across the state have quit their jobs because they refused to perform gay marriages. The magistrates that have quit say that performing gay marriages would violate their religious beliefs. The North Carolina Administrative Office of the Courts had issued a memorandum stating that state magistrates who refused to marry same-sex couples were violating their sworn oaths.  However, some magistrates argue they did not know they would be required to perform gay marriages at the time they took the oaths.

Olson stated in an interview that he does not believe the Supreme Court will render all the laws prohibiting same-sex marriage suddenly constitutional, since same-sex couples have been afforded new rights and many same-sex marriages have taken place.  According to Olson, “To have that snatched away, it seems to me, would be inhuman; it would be cruel; and it would be inconsistent with what the Supreme Court has said about these issues in the cases that it has rendered.”

On the other hand, Justice Ginsburg has said that there is no hurry unless there is a split in the lower courts.  So far, there is not a split.  It will be interesting to see when, and if, in the foreseeable future the Supreme Court takes up a case dealing with this issue.

Kruti Patel, Senior Staff Writer
About Kruti Patel, Senior Staff Writer (14 Articles)
Kruti Patel is a 2016 graduate, and served as a Senior Staff Writer for the Campbell Law Observer. She is a Greensboro, North Carolina native. In 2013, Kruti graduated from the University of North Carolina at Chapel Hill with a degree in Psychology and a minor in Spanish for the Professions. During the summer of 2014, Kruti worked as a research assistant for Professor Patrick Hetrick researching joint tenancy laws, and at the NC Department of Health and Human Services in the Communications Department. Kruti is worked as Prof. Hetrick’s research assistant and at the NC Hospital Association during her second year of law school.
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