By George Francis Kane
The marriage equality movement has had a string of successes in referendum elections and the courts. Today same-sex marriages are recognized by the federal government and are legal in 37 states and the District of Columbia. The bans on same-sex marriage are being challenged in court cases in the remaining 13 states. When the U.S. Supreme Court struck down key provisions of the federal Defense of Marriage Act (DOMA) in the 2013 United States v. Windsor case because provisions of the law denied same-sex couples of equal protection of the law, Justice Antonin Scalia scolded his colleagues that the logic of the decision would be used to overturn all state prohibitions of same-sex marriage. Now is not a time for complacency, however. Be certain that the opposition, almost exclusively from churches and religiously affiliated organizations, has not given up. Until same-sex marriage is recognized and permitted everywhere in the nation, the danger persists that all of these gains could be rolled back.
In Alabama, State Supreme Court Justice Roy Moore has written to Governor Robert Bentley urging him to defy an order by District Court Judge Callie Granade to begin issuing marriage licenses to same-sex couples. Moore’s arguments were based upon the nullification doctrines of John Caldwell Calhoun that inspired the Confederacy to secession and cast the nation into its Civil War.
Moore is the notorious “Ten Commandments Judge” who was removed from office in 2003 after his refusal to remove a religious monument from his courthouse, although he was recently elected back to the Chief Justice seat. His rebellion against the decision mandating same-sex marriage has no legal authority. Justices Clarence Thomas and Antonin Scalia were the only dissenters when the Supreme Court voted not to stay the order requiring Alabama to begin issuing marriage licenses to same-sex couples. It is certainly encouraging that Thomas interpreted that ruling as signaling the intent by the other justices to overturn state bans on same-sex marriage.
Nevertheless, the prospect that this conservative court could change direction from the Windsor decision should still be viewed with concern. In its grant of certiorari, SCOTUS has consolidated four cases in which the Sixth Circuit Court of Appeals ruled in favor of the right of states to ban same-sex marriage: Bourke v. Beshear from Kentucky, DeBoer v. Snyder from Michigan, Obergefell v. Hodges from Ohio and Tanco v. Haslam from Tennessee. The Court stated that it would rule only on the power of the states to ban same-sex marriages and to refuse to recognize such marriages performed in another state, and have asked litigants to limit their written and oral arguments to these two questions.
Lawyers for the four states are expected to argue, as they have at the Appellate Court, that the Supreme Court has already ruled on the right of states to ban gay marriage in the 1970 case Baker v. Nelson. That case was brought by two gay students at the University of Minnesota when they were denied a marriage license in Minneapolis. When they lost in Hennepin County District Court and the Minnesota Supreme Court, they appealed to the U.S. Supreme Court, which let the trial court decision stand with a single laconic sentence: “The appeal is dismissed for want of a substantial federal question.”
Since Windsor, four U.S. Courts of Appeal have held that Baker was no longer a controlling precedent. The Sixth Circuit finding to the contrary is the contested issue in the case. Judge Jeffrey Sutton ruled that Windsor and Baker were not in conflict, but rather perfectly harmonized: “Windsor invalidated a federal law that refused to respect state laws permitting gay marriage, while Baker upheld the right of the people of a State to define marriage as they see it.”
If the Supreme Court agrees with Judge Sutton, in all of the states where same-sex marriage was created by federal courts, the battle will have to be fought all over again, this time in the political sphere.