Tag: obergefell vs hodges
Same-Sex Marriage Ruling: A Q&A

Same-Sex Marriage Ruling: A Q&A

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

Supreme Court Hands Down Landmark Ruling For Marriage Equality

Supreme Court Hands Down Landmark Ruling For Marriage Equality

In a historic decision, the Supreme Court issued a ruling in favor of plaintiffs, LGBT activists, and marriage equality throughout the nation Friday morning, determining that same-sex couples have a constitutionally enshrined right to marry each other, and to have that marriage recognized everywhere in the U.S.

The 5-4 majority ruling was authored by moderate-conservative Justice Anthony Kennedy, joined by the Court’s four liberal Justices: Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

The opinion of the Court, delivered by Justice Anthony Kennedy, held that the “right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry.”

There were two questions at issue in Obergefell v. Hodges, which combined four cases challenging same-sex marriage bans in four different states: first, whether the states are required to grant equal marriage rights to same-sex couples; and second, whether states are required to recognize legal same-sex marriages performed in other states.

Kennedy’s opinion located the ruling in the long history of the evolving nature of marriage. Marriage, Kennedy wrote, “has not stood in isolation from developments in law and society. The history of marriage is one of both continuity and change. That institution—even as confined to opposite-sex relations—has evolved over time.”

Kennedy wrote further:

The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived.

[…] The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation. […] There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices.

In an apparent rebuke to arguments that same-sex marriage was harmful to children, the opinion went on:

The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation. […] There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices.

Chief Justice John Roberts authored the main dissent, in which he maintained that petitioners made “strong arguments rooted in social policy and considerations of fairness,” but that the Court did not have the right to dictate what the laws governing marriage should be:

The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition

[…] Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

Justice Scalia wrote a separate dissent “to call attention to this Court’s threat to American democracy,” which concluded:

Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. […] With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.

When the case was argued before the Supreme Court in April, Justice Anthony Kennedy asked plaintiffs why the Court should try to upend what he characterized as the solidity of marriage, defined for “millennia” as existing between a man and woman.

“It’s very difficult,” Kennedy said at the time, “for the Court to say, ‘Oh well, we know better.’”

Chief Justice John Roberts posited that plaintiffs had been intending to redefine “marriage” rather than join it. He stressed that every definition of the word he had found explicitly indicated that marriage was between a man and a woman.

Justice Samuel Alito raised the issue of polygamy, and Justice Antonin Scalia expressed concern that, if gay marriage became a constitutional right, ministers would lose the right to refuse to officiate ceremonies on religious grounds.

This is the latest in a long line of landmark decisions extending rights to gay Americans, which includes, most recently, Lawrence vs. Texas in 2003, in which the Court found that sodomy laws violated constitutional rights of liberty and privacy, and U.S. vs. Windsor in 2013, when the Court struck down the Defense of Marriage Act.

The opinion of the Court issued Friday morning concluded:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

[…] It is so ordered.

Photo: Pro and anti-gay marriage demonstrators rally outside the U.S. Supreme Court as it hears arguments on the question of same-sex marriage on Tuesday, April 28, 2015, in Washington, D.C. (Brian Cahn/Zuma Press/TNS)

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