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Thursday, October 27, 2016

By Katie Shepherd, Los Angeles Times (TNS)

The Supreme Court ruling that legalized same-sex marriage in the United States raised many questions over the status of marriage in the country.

Some states are refusing to issue marriage licenses to gay couples. Religious leaders and business owners are wondering what effect the legalization might have on their practices.

In an interview, law professor Melissa Murray of the University of California, Berkeley, who specializes in family and constitutional law, explored how those issues intersect with same-sex marriage rights.

Q. Same-sex marriage is now legal in all 50 states, but does that mean anyone can get married within the U.S.?

A. “It should mean that,” Murray said. “But there’s already been some pushback from a number of states.”

Louisiana is delaying marriage licenses for same-sex unions until the Supreme Court issues an official mandate announcing that the ruling has taken effect. Mississippi issued three licenses, then called a halt, saying it is waiting for the 5th U.S. Circuit Court of Appeals to act.

Utah might join the resistance. A state lawmaker has reportedly drafted legislation to stop Utah from issuing marriage licenses to anyone _ gay or straight.

“You should think of Brown v. the Board of Education, which desegregated schools,” Murray said, referring to the 1954 Supreme Court ruling that struck down separate-but-equal schools as unconstitutional. “But it actually took years for that to happen because so many Southern states dragged their feet.”

And same-sex couples might not be able to get married everywhere; churches, temples and other religious institutions could seek religious exemptions from the Supreme Court ruling.

Whether those exemptions would stand up under the Constitution is unclear, Murray said, but in states where same-sex marriage was already legal, most churches and religious leaders retained the freedom to refuse to perform such unions.

Q. Louisiana and Mississippi are not issuing marriage licenses to same-sex couples. What legal standing do they have to delay this process?

A. These states are on unclear legal ground.

“Think about abortion,” Murray said. “Women have a right to abortion, but the state doesn’t seem to have to furnish the ability to have one.”

States don’t have to support or fund abortion clinics even though the Constitution guarantees women the right to choose to end a pregnancy.

In other words, even when rights are confirmed by the Constitution, states don’t necessarily have to provide avenues to exercise those rights. Actively denying those rights or outlawing their exercise is unconstitutional, but states may be able to circumvent same-sex marriages by avoiding marriage altogether.

Whether states have an obligation to furnish the mechanisms necessary to enter a marriage is unclear, Murray said. But equally unclear is the sustainability of a strategy of total avoidance, she added.

Q. The governors of Texas and Louisiana hope to stop same-sex marriage. What options do they have?

A. “The Supreme Court is the court of last resort on the question,” Murray said. “Unless there’s another decision related to it, I don’t think they can go back to the courts.”

But a new, related case could spur the courts to clarify the extent to which states must facilitate same-sex marriages.

Q. Did the Supreme Court leave any room for states to regulate marriage in any way?

A. States maintain plenty of leeway under the Supreme Court ruling to regulate marriage individually. But no states can outlaw same-sex marriage, Murray said.

“States can prescribe who may marry as long as it is within constitutional bounds,” she said.

She recalled Loving v. Virginia, the 1967 Supreme Court case which struck down bans on interracial marriage.

Although states could not outlaw interracial unions, they could still issue a number of requirements _ blood tests, signatures, fees _ for marriage licenses as long as those requirements didn’t prevent couples of different races from tying the knot.

These same kinds of provisions can still be imposed by states as long as they don’t prevent same-sex couples from getting married.

Q. Does everyone have to perform same-sex marriages, even if they are morally opposed?

A. The answer to this question is also unclear, Murray said. Most states that allowed same-sex marriages before the ruling also provided religious exemptions.

The First Amendment guarantees people the right to free expression, which could include expressing objections to same-sex marriage by not providing marriage services.

But the extent to which services can be denied and by whom will likely depend on future challenges to the law and more court rulings, Murray said.

Q. What about other people in the marriage business? Do florists and bakers have to provide services to same-sex couples?

A. Again, the effect of the Supreme Court ruling is unclear. Previous challenges involving businesses turning away gay customers who were trying to throw a wedding have resulted in wins for the couples.

Most states faced with this question have affirmed in court that it is illegal to deny services to someone based on sexual orientation.

Still, Murray says, lawsuits could influence these business owners and couples seeking clothing, food and decor for their wedding ceremonies.

(c)2015 Los Angeles Times. Distributed by Tribune Content Agency, LLC.

AFP Photo/George Frey

  • charleo1

    That’s the problem with the equal protection clause. What fees, tests, waiting periods, hoops that first must be jumped thru, or obstacles imposed on same sex couples. Are now thereby automatically imposed upon all couples. Adam, and Steve, and Adam, and Eve. Oh the tyranny of the throat cramming necessary sometimes in equality for all! Democracy is so hard. And for a State to refuse to issue license to marry at all, looks every bit like what it is. A huge hissy fit. Of which voters will not put up for a second.

    • TZToronto

      Oh, the voters in some states will love it. These are the states in which a majority of people love to cherry pick–words from the Bible, words from the Constitution (esp. the 2nd Amendment), words from the Affordable Care Act. Of course, there will be some who change their minds when their financial well-being is threatened, either through denying services to same-sex couples or through states’ trying to deny marriage licences to same-sex couples and getting sued. How is a state that grants marriages licences to straight couples going to justify denying those licences to same-sex couples? Just as important are the tax-related status of same-sex couples. The IRS already recognizes those same-sex marriages; will states try to treat same-sex couples differently? You can bet that they’ll try. Perhaps couples who want to marry will have to go out of state to do so in some cases.

      • charleo1

        I think you’re right, that some people who are under the mistaken belief the law may be applied unequally as a public officials see fit. Until the discrimination slops over on their wedding plans. A few bakers, and wedding planners might mistakenly think it’s a good idea too. Until it starts to hit them in their collective wallets. Those politicians are being
        completely disingenuous when they say a government agency, funded by public tax dollars, may choose to provide service to one taxpayer, but single out and refuse the same service to another. Based on nothing but the public official’s say so. It’s not only absurd, but completely undemocratic.

  • yabbed

    It’s the law of the land now, whether certain people like it or not. Marriage is a civil contract and licenses are now legally available to all couples of whatever gender they wish to marry. States have to provide the licenses; someone will perform the ceremony. Religious ceremonies are not what legally marries. There will be members of the clergy who will gracefully and happily marry same sex couples. Friends can become temporary custodians of a religious title and perform the ceremony. Judges will soon be known locally by their willing participation. Nothing is going to stop same sex marriage now that the Supreme Court has ruled. There is commerce to be had there and money to be made so if prejudiced businesses don’t want the wedding work, others do. Life goes on. It’s a righteous ruling in keeping with our Constitution. Enjoy!

    • Allan Richardson

      Religious institutions can set their own rules for performing RELIGIOUS marriage ceremonies. Catholics for years required a non-Catholic to go through conversion and baptism in order to marry a Catholic in the church, which is the only marriage recognized as valid by the church. I have heard that the rule is more relaxed today, in that both partners must pledge to raise any children as Catholics. That church also refuses to recognize civil divorce; there must be a church ANNULMENT (meaning that the marriage was never religiously valid, but the partners are not guilty of any sins for believing they were married) before either one can be married in the church, and (supposedly) there must be a valid Catholic canon law reason for the annulment.

      Most Jewish groups have traditionally required conversion in order for a non-Jew to marry a Jew, which (for the man) can be painful. Also, a divorced Jew cannot be remarried in a synagogue without a religious divorce, and only the husband, under Jewish law, can ask for the religious divorce. There are many women who claim their ex-husbands’ families are extorting money from them in order to marry again (at least until HE wants to remarry!).

      Other religions have their own rules about who can marry in their faiths with a religious ceremony, and that should not change (in fact, as an advocate of marriage equality, I would still defend their rights to set RELIGIOUS marriage rules, no matter how silly or unfair they may seem to ME, and also the right of individual members to leave their faiths and find a church or other place of worship which accommodates them).

      • yabbed

        Religious practices can be whatever they wish to be. Marriage is a civil contract. Priest, Rabbi, Iman, Minister, Judge, or Elvis Impersonator all say the thing: by the power VESTED IN ME BY THE STATE I pronounce you husband and wife.

  • FT66

    Those who go against any law know what are the consequences. Same-sex marriage law has no difference. Those who don’t abide to it must be put behind the bars. This nation is made of laws and rules. It is not Somalia where every and each individual decides to do whatever they want.

    • johninPCFL

      Well, can government offices charge more for same-sex certificates than straight (i.e. a gay Jim Crow law)?
      After all, Somalia is the laissez-faire capitalism showpiece for the world.

      • FT66

        I am talking about abiding to laws. There is no law in Somalia to abide to. They even allow their cows to lie on middle of main roads and nobody can drive through and they don’t care at all. I have seen this many times when I was there. No laws there and can’t be the same in US. No way.

    • idamag

      And to whom they want.

  • Francis7458

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  • Right-wing government officials who press for more religious liberties will find their states losing substantial investments from business. Indiana woke up, but Lousiana has not. Jindall issued a directive on religious liberties that was strongly opposed by IBM who had just built a facility in the state. IBM refused to show up for ribbon-cutting ceremonies. It’s analogous to governors not expanding Medicaid in their states; in so doing, they express their Obama-hatred but hurt their own citizens.

    • Wayneo

      The GOP are not concerned about the common citizen.

  • idamag

    It is so true that there will be kicking and screaming for some time to come. Look how long it took for Civil Rights to take effect after it was passed.