BREAKING: Marriage Takes Center Stage at the Supreme Court

by Hayley Miller

WASHINGTON – Today the U.S. Supreme Court granted petitions for writ of certiorari in cases from four states regarding state bans on marriage for same-sex couples. In due time, the highest court in the land will be asked to decide whether the U.S. Constitution allows for states to discriminate against gay and lesbian couples by denying them the right to marry or refusing to recognize the same-sex marriages performed in jurisdictions where they are legal. The cases are from Kentucky, Michigan, Ohio and Tennessee are on appeal after the Sixth Circuit Court of Appeals overturned district court rulings striking down the states’ marriage bans. To date, four federal circuit court decisions and dozens of federal district court decisions have ruled such bans unconstitutional since the Supreme Court’s historic rulings in 2013 in United States v. Windsor andHollingsworth v. Perry. The Sixth Circuit Court of Appeals’ marriage decision in November of 2014 marked the first and only time a federal appeals court had ruled in favor of state marriage bans.

"Marriage has returned to the U.S. Supreme Court faster than virtually any other issue in American history, and there's a simple reason for that--committed and loving gay and lesbian couples, their children, and the fair-minded American people refuse to wait a single day longer,"

said Human Rights Campaign President Chad Griffin. “As Justice Anthony Kennedy said in the Windsor case, this is a struggle over whether our families are equal or whether they are second class. The U.S. constitution does not tolerate second-class citizenship, a fact that has toppled discriminatory marriage bans from Utah to Arkansas. We've reached the moment of truth--the facts are clear, the arguments have been heard by dozens of courts, and now the nine justices of the Supreme Court have an urgent opportunity to guarantee fairness for countless families, once and for all.”

The cases have been consolidated for oral argument.  Based on the briefing schedule established in the Supreme Court’s order today, it is expected that oral argument will take place this spring, with a ruling likely to come in June of 2015.


Kentucky: On February 12, 2014, U.S. District Court Judge John G. Heyburn II ruled in Bourke v. Beshear that Kentucky ’s marriage ban violates the constitutional principal of equal protection and that the Commonwealth cannot refuse to recognize valid same-sex marriages performed in other states. The judge, who was appointed to the bench by President George H. W. Bush, sided with four plaintiff couples who had legally married elsewhere before seeking state recognition in Kentucky.  Soon after, two unmarried same-sex couples were permitted to intervene in the case.  The case was renamed Love v. Beshear and on July 1, 2014, Judge Heyburn again ruled against Kentucky’s marriage ban, this time deciding against the provision forbidding the Commonwealth from performing marriages for same-sex couples. The plaintiffs are represented by Clay Daniel Walton & Adams PLC, and Fauver Law Office PLLC.  

Michigan: On March 21, 2014, U.S. District Judge Bernard A. Friedman, nominated to the bench by President Ronald Reagan, ruled against Michigan’s ban on marriage equality in DeBoer v. Snyder.  In the 24 hours that followed more than 300 same-sex couples across the state were married until the Sixth Circuit granted a stay in the decision.  The case was filed by April DeBoer and Jayne Rowse, who wanted to jointly adopt their three children they were raising as foster parents.  Judge Friedman as the presiding judge expanded the challenge to the constitutionality of the state’s ban on marriage for same-sex couples, as that was what prevented DeBoer and Rose from jointly adopting.  The women are represented by private counsel and Mary Bonauto of Gay and Lesbian Advocates and Defenders (GLAD).

The DeBoer ruling was particularly notable as it dealt a blow to the credibility of Mark Regnerus, who testified during the trial as a witness for the state after authoring a biased and flawed anti-gay parenting study that was conceived and funded by anti-gay groups.  In his ruling, Judge Friedman wrote, “The Court finds Regnerus’s testimony entirely unbelievable and not worthy of serious consideration.”  

Ohio: On December 23, 2013, U.S. District Judge Timothy Black ruled in Obergefell v. Himes that the Ohio’s refusal to recognize the marriage of a same-sex couple who married in another jurisdiction is unconstitutional.  The case was filed in July 2013, by attorney Al Gerhardstein on behalf of Jim Obergefell and John Arthur, who were seeking recognition of their Maryland marriage on John's death certificate, before John's death.  The Court ordered the state to recognize Jim and John’s marriage when John died on October 22, 2013, allowing his death certificate to list Jim as his surviving spouse.  Gerhardstein is joined by the ACLU and ACLU of Ohio in this case.  On April 14, 2014, Judge Black ruled in another Ohio marriage case – Henry v. Himes, this time ruling that the state must recognize all marriages of same-sex couples performed in other jurisdictions.  In Henry, Al Gerhardstein and Lambda Legal represent couples who wish for their out-of-state marriages to be recognized so that both parents’ names will be listed on their children’s birth certificates.  These cases were consolidated for argument before the Sixth Circuit. 

Tennessee: On March 14, 2014, U.S. District Court Judge Aleta Trauger ordered Tennessee state officials to recognize the out-of-state marriages of three same-sex couples.  Judge Trauger did not stay her ruling, noting that the plaintiff couples would likely be victorious in future appeals and challenges.  The Sixth Circuit later stayed the ruling.  The couples in Tanco v. Haslam are represented by the National Center for Lesbian Rights, Abby Rubenfeld, the law firm of Sherrard & Roe, Maureen Holland, and Regina Lambert.

Without legal marriage recognition, same-sex couples face issues in:

OUT-OF-STATE RECOGNITION: Same-sex couples can legally marry in 36 states and Washington, DC, as well as a number of countries around the world.  But if two women that marry in one of those jurisdictions move to a state that bans marriage equality, they immediately become legal strangers in the eyes of their new state. 

PROPERTY RIGHTS: Without legal marriage, there’s no guarantee of an automatic property transfer to a surviving spouse when someone dies.  So a person may not be able to stay in the family home after a spouse passes away. 

HEALTHCARE DECISIONS: Without legal relationship recognition, hospitals aren’t automatically required to inform or consult same-sex partners in times of emergency. In some cases, people have been denied the ability to say goodbye because they were unaware their partner or spouse was dying due to a lack of notification.  

PARENTING: Banning marriage to same-sex couples frequently interferes with the non-biological parent being recognized as a parent. This harms children by denying them access to social security benefits, insurance coverage, emergency decision-making, medical care and so much more. 

ADOPTION AND CUSTODY: Many states only allow one parent in a same-sex relationship to be the legal parent to a child through adoption.  Others don’t allow the same-sex spouse to legally adopt the children of their husband, wife or partner.  So even though a person could have raised a child since birth, he or she could be denied custody of that child if the legal parent dies or the couple separates. 

TAXES: Legally married same-sex couples living in a state that doesn’t recognize their marriage will generally have to file separate state income taxes – listing themselves as single – even though they file federal income taxes jointly.

EMPLOYER BENEFITS: Without legal marriage, employers aren’t required to allow their employees to list same-sex spouses or partners as beneficiaries of employment benefits, including health insurance.  

SOCIAL SECURITY: Even legally married same-sex couples aren’t able to access Social Security benefits if they live in a state that doesn’t recognize their marriage.

VETERANS BENEFITS: The Veterans Administration is only recognizing married same-sex couples who currently live in marriage equality states.  So the civil spouse of a military veteran of the same sex doesn’t have access to veterans benefits that every other spouse is eligible to receive. 

EMERGENCY SERVICES: When disaster strikes families rely on each other.  But without marriage, emergency shelters can separate families – even a parent from children if he or she has no legal claim to them. 

Today over 216 million Americans – 70 percent of the country – live in a state with marriage equality.  Gallup puts support for marriage equality at 55 percent – an astonishing 15 points increase from just 5 years ago – with other polls showing support at even higher margins.  And support for same-sex marriage rights continues to grow in virtually every demographic group.  According to ABC News/Washington Post, 77 percent of adults under age 30 favor marriage equality.  40 percent of Republicans – an all-time high and jump of 16 points in under two years – now support marriage for gay and lesbian couples, while the number of Catholics supporting marriage has grown to 62 percent, according to the New York Times.  These numbers continue to grow, with no indication that support will slow down. 

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