In the week after the U.S. Supreme Court heard oral arguments in marriage litigation, advocates remain optimistic, but acknowledge the possibility of an adverse ruling upholding bans on gay nuptials.
After all, U.S. Associate Justice Anthony Kennedy, who’s considered the swing vote on the bench, didn’t give a clear signal that he’d join a decision overturning state laws defining marriage as one man, one woman.
“This definition has been with us for millennia, and it’s very difficult for the court to say, ‘Oh, well, we know better,” Kennedy said at one point.
For starters, a ruling from the Supreme Court in favor of marriage bans would be the end of the line for litigation before the court seeking the right to marry for same-sex couples in the Sixth Circuit states of Michigan, Ohio, Kentucky and Tennessee.
Gregory Varnum, spokesperson for Equality Michigan, said his state is prepared to attain marriage equality through alternative means if the Supreme Court doesn’t come to the aid of same-sex couples in Michigan.
“While we remain confident the Supreme Court will issue a ruling affirming marriage equality, through our work around the Michigan for Marriage campaign and other efforts, we have been laying the foundation for contingency plans for several years,” Varnum said. “Michiganders increasingly support the freedom to marry, and while no victory is inevitable, Equality Michigan is confident our community will soon secure marriage equality in Michigan.”
According to a poll commissioned by Equality Michigan and conducted by the Chicago-based Glengariff Group last year, 56.2 percent of Michigan voters support same-sex marriage. During a presidential election year in 2016, that support could be enough to win marriage equality through the voter-initiated ballot process.
But the path to victory won’t be easy for other states with pending litigation before the Supreme Court.
Chris Hartman, director of the Kentucky-based Fairness Campaign, said efforts in his state would return to the legislature, but noted it won’t be easy.
“If the Supreme Court were to rule against the freedom to marry, the Fairness Campaign and its allies would redouble its efforts where we already are working tirelessly — the Kentucky General Assembly,” Hartman said. “Barring a different favorable court ruling, the path of marriage would once again have to be forged through the state legislature, where support is growing at a snail’s pace for marriage.”
In the event LGBT advocates in Kentucky would have to win gay nuptials through the legislative process, Hartman predicted an LGBT non-discrimination measure would be enshrined into law before marriage rights.
A court ruling upholding bans on same-sex marriage wouldn’t be limited to challenges to state bans pending before the court; it would also halt federal litigation in the remaining 13 states without marriage equality.
Appeals courts in the First, Fifth, Eighth and Eleventh Circuits, where marriage litigation is still pending, would look to the Supreme Court ruling as precedent and uphold bans on same-sex marriage in states within those jurisdictions.
Elizabeth Cooper, faculty director for Fordham University’s Feerick Center for Social Justice, said a Supreme Court ruling upholding bans on same-sex marriage “would be the end of the road” for these states “under the federal Constitution.”
“It’s not the end of the road under either the state constitution or state legislature, or even, for that matter, referenda,” Cooper said. “Individuals can certainly continue to advocate for same-sex couples to be able to marry, it’s just very hard to think about success coming anytime soon in states where there is a strong bias against gay people, or against the right of same-sex couples to marry.”
Moreover, pursuant to Federal Rule of Civil Procedure 60, a ruling against same-sex marriage from the Supreme Court would enable states to seek to vacate rulings by lower federal courts that have already ruled in 21 states in favor of marriage equality.
Sarah Warbelow, legal director for the Human Rights Campaign, said during a panel last month in D.C. hosted by the American Constitution Society, that determining which states would seek to vacate federal court decisions is “a bit of a crap shoot.”
“There are some that I think we can feel fairly confident, like Oregon, aren’t going to make such a choice,” Warbelow said. “Presumably, Virginia would not either. States like Alabama, clearly, are going to seek that right. So what the final landscape looks like is unclear.”
Likely Republican presidential candidate and Wisconsin Gov. Scott Walker has already indicated in an interview with Iowa conservative blog Caffeniated Thoughts that he would seek to relitigate the decision bringing marriage equality to Wisconsin if the Supreme Court upholds bans on same-sex marriage.
“I may be one of the few out there, but I’m still hoping that the U.S. Supreme Court, not in our case, but it would apply to our state’s case if these other states are victorious,” Walker said. “I still am going to hope that the United States Supreme Court will say, ‘yes indeed, states have a right to define what marriage is.’”
Adam Romero, senior counsel and Arnold D. Kassoy Scholar of Law at the Williams Institute, University of California, Los Angeles, identified Utah — the first state where a federal judge struck down a ban on same-sex marriage — as another place where marriage equality would be in jeopardy.
“If the Supreme Court affirms the Sixth Circuit and upholds the constitutionality of same-sex marriage bans, I would expect the Utah defendants to go back to the district court to vacate the injunction and judgement in place, and I would expect the district court to grant such relief,” Romero said.
One question that would emerge after a ruling upholding bans on same-sex marriage: What would happen to the marriages of same-sex couples who already wed as a result of federal court action against bans on gay nuptials? Would they remain in effect, or be invalidated?
Based on data collected this year, a total of 176,000 married same-sex couples now live in states that have marriage equality as a result of federal court action, according to the Williams Institute, University of California, Los Angeles.
Comparatively, 149,000 married same-sex couples lives in state that have marriage equality as a result of ballot initiative, legislation or state court decisions and 65,000 married same-sex couples live in states without marriage equality.
Cooper said a ruling affirming state prohibitions on gay nuptials would potentially “wreak havoc” on same-sex marriages that resulted from federal court rulings, but she remains confident those unions would be upheld.
“They were legally entered into, and they should continue to stand,” Cooper said. “One of the most important principles of American law is the whole notion of reliance and precedent, and so, it would be highly unusual for the court to reach a decision that same-sex couples do not have a federal constitutional right to marry, and then undo all of those hundreds of thousands of marriages.”
Paul Smith, an attorney at the D.C. law firm Jenner & Block who successfully argued before the Supreme Court against state sodomy laws in 2003, said during the American Constitution Society panel discussion that states may argue they can unmarry same-sex couples, but “the constitutional arguments for blocking that are very, very powerful and would prevail.”
“I think it would be a really painful experience for the country, at least for a lot of people in this country, if the Supreme Court defied expectations in that way,” Smith said.
Although a scenario in which the Supreme Court upholds bans on same-sex marriage is possible, most legal observers believe such an outcome is unlikely given the court’s earlier action denying certiorari in cases where circuit courts struck down bans on same-sex marriage and Kennedy’s previous decisions in favor of gay rights.
Cooper said a decision upholding bans on same-sex marriage “is not a likely scenario” given the history of the Supreme Court.
“In an ideal world, the court would issue a strongly worded decision analogous to what they did in Windsor talking about the dignity of individuals seeking to marry those whom they love and hold most dear, and to indicate that that line extends to same-sex couples under either the due process clause or the equal protection clause of the 14th Amendment of the federal Constitution,” Cooper said.