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Nguyen: Same Sex Marriage Before the Supreme Court: What is at Stake?

Wednesday, April 29, 2015


While oral argument before the Supreme Court of the United States is typically limited to one hour – 30 minutes for each side with the justices asking questions throughout – on Tuesday, April 28, the Supreme Court heard 2 ½ hours of argument in the case of Obergefell v. Hodges, the case that will decide the constitutionality of gay marriage.

The two main questions before the Supreme Court are (1) whether state bans on gay marriage are constitutional and (2) whether the states with bans on gay marriage are allowed to refuse to recognize out-of-state marriages if the marriage is legal in the state where it was performed.

Specifically, Ohio, one of the four states defending its bans, has enacted laws that prohibit gay marriage and Ohio does not recognize a same-sex marriage from another state. This leads to many practical issues for gay spouses. For example, a gay couple who was legally married in Massachusetts could just be driving through Ohio and get into a car accident, requiring one spouse to be hospitalized. The laws of Ohio would not allow the non-hospitalized spouse access to the hospitalized one (immediate family only) or to make healthcare decisions. Because of this, married gay couples are often forced to pay for countless legal documents that spell out their rights to ensure protections that heterosexual married couples enjoy automatically.

Another bewildering example of the roadblocks faced by gay spouses is that only one parent is allowed to be named on a birth certificate of an adopted child in Ohio if the couple is gay. Think about the rights and protections you get as a parent by being listed on your child’s birth certificate. Think about the possibility of losing your child, who you could have raised for years, if your spouse dies, simply because the state where you adopted the child does not recognize your marriage, even though you live in Massachusetts.

Michigan, Tennessee and Kentucky join Ohio.

This is not the first time the controversy over same-sex marriage has been before the Supreme Court. In 2013, in United States v. Windsor, the court struck down portions of the Defense of Marriage Act, which was a federal act that would have barred gay married couples the same rights as heterosexual married couples under federal law. The Supreme Court held that not recognizing same-sex marriages for federal purposes was unconstitutional. As a result of Windsor, gay couples who are legally married in the state they live are deemed to be married in the eyes of the federal government. This applies to things like federal tax filings. The problem with the Windsor case is that it left many questions unanswered – mainly the two questions that are now before the Supreme Court in Obergefell.

While we all know the heart of the dispute comes from an emotional disagreement among people about whether gay marriage is “right” or “wrong,” the Supreme Court will not make that moral decision for us. Instead, the court will look to the language and spirit of the Constitution to determine if gay marriage is a fundamental right that is protected.

Here, the 14th Amendment of the Constitution is central and it provides:

No State shall make or enforce any law which shall abridge the privileges or immunities of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of the law; nor deny any person within its jurisdiction the equal protection of the law.

Both sides of the controversy make complicated Constitutional arguments based on precedent from other cases to support their positions.

The states argue that the decision of same-sex marriage should be left to the states and the federal government should stay out of it. The argument goes that the voters in Ohio have spoken and it is they who have made these laws. To allow the federal government or states like Massachusetts to impose their will on Ohio is a violation of Ohio’s rights as a state. In other words, gay couples in Ohio should not be able to get married in Massachusetts to side step Ohio laws and force Ohio to abide by a Massachusetts law that goes against Ohio’s “public policy.”

Advocates for gay marriage disagree and argue that marriage is a fundamental right and state laws that define or regulate it must respect the constitutional rights of the people. Furthermore, they argue that this country is not one that takes a “wait and see” attitude, waiting for a vote by a majority before extending equal rights to those marginalized. Case in point – currently 36 states and the District of Columbia allow same-sex marriage. Of those, only 11 states granted the right to same-sex marriage through ballot or new legislature. The rest came down from court orders.

Advocates of gay marriage also criticize one of the reasons that Ohio gives for banning gay marriage – a protection of procreation. Basically, Ohio argues that marriage is for the purpose of having babies. I’ll let you work that one out on your own.

It’s hard to say which way the Supreme Court will go given the almost even split of conservatives and liberals on the bench. If the court agrees with gay marriage advocates, it could mean that same-sex marriage must be allowed in all states. If the court disagrees, there may be a whole slew of cases in states where the courts previously held that bans were unconstitutional.

We probably won’t know until late June.

Aivi Nguyen is a trial lawyer with the Law Firm of Bowditch & Dewey, LLP in Worcester.

VW Image Credit: SAUL LOEB/AFP/Getty Images


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