This post is part of Daniel Bennett’s series previewing the constitutional issues facing the courts this year.
If recent lower court activity is any indication, 2015 may be the year the U.S. Supreme Court finally settles the question of same-sex marriage in the states.
Last November, the Sixth Circuit Court of Appeals upheld gay marriage bans in several states. This decision set up the kind of conflict the Supreme Court usually resolves, since every other appellate court had deemed such bans unconstitutional.
A definitive decision on same-sex marriage is not an “if” question, but a “when.” And many have speculated that the justices will resolve the issue soon. The constitutional issues are too important.
The question in these cases is simple: does the 14th Amendment’s Equal Protection Clause prohibit states from defining marriage as between one man and one woman? The vast majority of lower courts have found that same-sex couples must be treated the same as heterosexual couples in terms of legal marriage. LGBT equality is being viewed by most courts as similar to racial, religious, or ethnic equality.
This means that a state can’t just rely on arguments such as federalism (“a state has the right to define marriages”) or democracy (“the voters approved this ban”). No, a state must show it has compelling interest in barring same-sex marriages. Most arguments to date have centered on a state’s interest in preserving traditional family structures and protecting the well-being of children. And most courts have found these arguments unpersuasive.
Until the Supreme Court takes up the issue, the lower courts can make different rulings. In one state, a gay couple would have a constitutional right to be married. In the neighboring state, however, this right wouldn’t exist.
The ultimate strategy of attorneys on both sides of the issue involves review by the Supreme Court. And with a lack of unanimity in the lower courts, the Court may finally see an opportunity to step in.
The Court could decide this month to hear a marriage case during the current term, which would point to a ruling sometime in June. And unlike in previous cases, a substantive decision is likely to follow.
Advocates for same-sex marriage should be optimistic: four liberal justices will certainly vote for marriage equality, and Justice Kennedy, a conservative in many ways, has endorsed their arguments before.
All that’s left to determine is the timing.
Daniel Bennett (@), PhD, researches the conservative legal movement. He is a professor of political science at Eastern Kentucky University.