Today, the Supreme Court of the United States granted certiorari in four cases, which were consolidated: Bourke v. Beshear, DeBoer v. Snyder, Obergefell v. Hodges, and Tanco v. Haslam. These are same-sex marriage cases representing direct challenges to state-level statutory and state constitutional same-sex marriage bans, from Kentucky, Michigan, Ohio, and Tennessee respectively, presenting two questions:
1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
So this consolidated case is for all the marbles. The lead case, and the most senior petition, is Obergefell, so I have to image that’s what the consolidated case will be called. Note that all four cases come from the Sixth Circuit, which has been out of step with the majority of its Sister Circuits in holding that states may ban same-sex marriages. Kind of a signal, you think?
Politically, it may seem like this is a settled issue in favor of SSM, but that a) confuses a trend for a result, and b) ignores the uncomfortable reality that in Windsor v. United States, Justice Anthony Kennedy’s swing vote (upon which SSM rights rests) were based on dual rationales. Kennedy noted both that individuals have a substantive due process right to marry who they wish, and that defining and regulating marriage has been a traditional function of the states rather than the Federal government. In Windsor those two rationales dovetailed in favor of striking down the Federal Defense of Marriage Act. In direct challenges to state laws, however, those rationales clash. It is not clear in my mind that Justice Kennedy will necessarily favor substantive due process over federalism — probable, given his past voting history on issues involving the rights of LGBTQ people, but not certain by any means, because he’s also dug deeply into federalism issues. To my knowledge, he’s never before been asked to weigh those banner issues against one another.
Be on the lookout for oral arguments in May, and a ruling at the very end of Court’s session in June.
Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.