Supreme Court to decide soon on state same-sex marriage bans

It could be a court decision that sows mass confusion as couples are legally split up and vital benefits withdrawn. It also could force states — and 2016 presidential contenders — to reckon with a political and legal morass of epic proportions.

Nothing short of marital and family-law chaos looms if the Supreme Court rules this June to uphold state-level bans on same-sex marriage. It’s a possible outcome that few are willing to contemplate as the court hears oral arguments on the subject on Tuesday.

Conventional wisdom in most legal and activist circles is that marriage for same-sex couples will be legal coast to coast by Supreme Court fiat by this summer, when the justices are expected to rule on cases involving Michigan, Ohio, Kentucky and Tennessee. This impression of a fait accompli has led states like Indiana and Arkansas to try to affirm the right of merchants to deny services to gays and lesbians on the basis of religious belief.

Yet the Supreme Court is nothing if not unpredictable and mysterious. Regardless, anything less than full national recognition that same-sex couples have the right to marry would be viewed as a defeat for LGBT activists. For couples in 37 states and the District of Columbia where marriage for gay couples is legal, a decision that upholds same-sex marriage bans in any way could strip thousands of protections and benefits they already count on.

“It would be the same kind of chaotic situation we had after Prop 8 passed in California and couples there didn’t know if they were still married,” said Heather Cronk, a co-founder of GetEqual, a grass-roots LGBT activist group known for its members’ chaining themselves to the White House fence and conducting sit-ins at the offices of anti-gay elected officials. “And even if they are still married, does their company still recognize their husband or wife for health benefits? Does it depend on where the company is based? It is very confusing on a very personal ground level. If we get anything less than a sweeping federal ruling, it will be very, very confusing.”

By most indications, pro-gay court watchers have cause for optimism. The court in recent months has refused to halt same-sex marriages in several states where it could have. Also, expected swing Justice Anthony Kennedy has over the past two decades penned increasingly pro-gay rulings, most notably the 2013 Windsor v. U.S. decision, which struck down the Defense of Marriage Act and compelled the federal government to recognize same-sex marriages. In his opinion, he said gay couples are entitled to protection from discrimination under the 14th Amendment.

Still, less than two years ago, the Supreme Court chose not to settle the broader question of marriage equality, despite having a clear opportunity to do so. The justices, concurrently with the Windsor case, considered in Perry v. Schwarzenegger whether California’s ban on same-sex marriage was constitutional. They heard arguments in Perry that will likely be repeated next week, but in 2013 they merely threw the case out on technical grounds, so a lower court’s decision to strike down the ban applies only to California.

Intriguingly, gay groups and their supporters seldom raise the prospect of chaos in their legal arguments. Very few of the dozens of pro-gay amicus briefs filed refer to the legal morass that the court could bring about, and, when they do, it’s only in passing. Ken Mehlman, the openly gay former Republican National Committee chairman, for instance, was one of the few, and he raised the matter only in a footnote to his 68-page brief.

Several major LGBT groups did not return calls requesting comments.

Lambda Legal, which is a party to one of the four lawsuits heading to the high court, replied to a request for an interview with an email containing a link to a page on its website explaining the court’s decision to take on the cases and the ramifications of a ruling either way, with short sections under the headings “What happens if we win?” and “What if we lose?” The group asserts there that existing same-sex marriages would remain valid but that “those couples may want to take additional steps (such as executing wills and durable health care powers of attorney and securing second parent adoptions) to provide them and their families extra peace of mind and security … There’s no question that it would be a mess.”

But Cronk believes national groups downplay the prospect of a Supreme Court loss at their peril. “Everybody in the movement wants to create this sense that momentum is with us and it’s inevitable,” she said. “It makes sense until it doesn’t, until you lose. It’s quite possible that we get something less than full federal marriage equality, and I don’t think the movement has been vocal enough for articulating a vision for what’s next.”

Lambda may assert existing marriages will remain intact, but many legal scholars aren’t so sure. Twenty-two of the 38 jurisdictions that allow same-sex marriage were ordered to do so by federal courts; just 11 of them made it legal legislatively or via referendum. The rest were the result of state-level court rulings.

Many deep-red states defiantly fought those rulings — Alabama’s State Supreme Court, most notably, continues to instruct local authorities to disregard the federal court mandate — and will likely reverse course if the Supreme Court allows them to.

“If the Supreme Court says gay marriage is not required, then it wipes out the rulings under which those marriages were recognized in the first place,” said Richard Primus, a University of Michigan constitutional law professor and a former clerk to Supreme Court Justice Ruth Bader Ginsburg. “The question will then become, Do states that don’t have gay marriage have an obligation to give full faith and credit to gay marriages as entered into in other states? And the answer to that that will become critically important and would probably be yes. But that’s where the litigation would shift.”

Opponents of same-sex marriage, however, would fight that, said former Chapman University Law School dean John Eastman, the chairman of the National Organization for Marriage. “If the only ground on which those marriage licenses were issued contrary to state law is the grounds that the state law was unconstitutional, a ground we would now know not to be true, those marriages were void under state law from the beginning,” he said. But, he said, he would not bothered much if the Supreme Court leaves existing marriages in place if that meant a broader victory for traditional marriage. “I don’t think that matters. What we’re talking about there is not individual marriages.”

Yet to gay rights advocates, those thousands of individual marriages and the families they legally form do matter and would be immediately harmed if the unions are voided. Couples who have been able to marry have jointly adopted children, filed joint income tax returns, begun to share health and pension benefits, altered wills and powers of attorney to conform with how such documents are viewed through the lens of state-recognized marriage.

Gay and lesbian parents, long aware they become legal strangers when they enter states where same-sex marriage is not recognized, will find such mobility harder once again if many states reassert marriage bans. “If we lose on the Supreme Court level, we’ll be married here, yeah, but if we went to Ohio to take the kids to the water park, then we cross the border, and we’re not married anymore,” said Michigan resident Beth Patten. She and the woman who is now her wife were the first same-sex couple wed in Ann Arbor in March 2014, when some county clerks issued licenses.

About 300 couples did so the day after a federal judge struck down Michigan’s marriage ban. The next day, the 6th Circuit Court of Appeals stayed the ruling and prevented further same-sex marriages in the state. “We have to travel with our medical power of attorney, our birth records, our adoption records. Other people don’t have to do that,” Patten said.

Another peculiar outcome if the Supreme Court doesn’t rule for marriage equality nationwide is what’s called wedlocking of same-sex couples. That is, gay men and lesbians who wed in a marriage equality state and move to one that doesn’t recognize their marriage may be unable to divorce “when the union is no longer working,” according to an amicus brief filed by the Alliance: State Advocates for Women’s Rights and Gender Equality.

The brief says the Alliance’s members “periodically hear from married same-sex couples who wish to divorce but cannot; they now live in a state that does not recognize their marriage and will not process their divorce, and they are unable to secure a divorce from the state in which they were married because they are no longer residents. They are thus stuck in limbo and forced to remain legally married to a person with whom they no longer wish to share their life, unless they upend their lives by moving to a state that will permit them to obtain a divorce.”

Also, a ruling against a national right for same-sex couples to marry could be fraught with danger for Republican presidential aspirants because their primary voters largely oppose gay rights but polling shows that the nation as a whole is firmly supportive of same-sex marriage.

In particular, said University of Virginia political science professor Larry Sabato, it would be bad news for former Florida Gov. Jeb Bush (who has not officially announced his candidacy but is seen as the front-runner for the GOP nomination), since he has soft-peddled his views on same-sex marriage as part of an effort to position himself as a moderate to the broad electorate. If gay marriage returns as a hot topic, Sabato said, “He’s not going to have that luxury if he wants to be nominated … That may be the single biggest impact for 2016. It may strip away part of the Bush veneer of moderation.”

Gregory Angelo, the executive director of the Long Cabin Republicans, a gay group, agreed a ruling upholding state same-sex marriage bans is a long-term loser for Republicans. “It would allow Democrats to continue playing identity politics with the gay community,” he said. “It would delay the point at which independents and the politically unaffiliated are willing to give a second look to Republicans.”

For the nation at large too, it would mean several more years of debate over the definition of marriage, an expensive slog that would likely involve lobbying in state capitals and hard-fought ballot measures, even if the majority of Americans no longer oppose same-sex marriages.

“It’s going to reignite the culture wars in a major way. This will be a five-alarm fire in a lot of these states,” Sabato said.