May 6, 2015 at 7:31 am EDT | by Chris Johnson
What if Supreme Court rules against marriage?
NOM, National Organization for Marriage, gay news, Washington Blade

Anti-gay protesters rally at a National Organization for Marriage event. (Washington Blade photo by Michael Key)

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.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

21 Comments
  • Um, where were you going to mention that marriages in states that themselves recognized marriage equality — whether through their state courts, their legislatures, or by referendum — will continue to enjoy marriage equality whatever SCOTUS does?

    • Seriously? You need that to be spelled out to you? That is a given. It is not even at play here. There is no need to mention this in the article. It is completely obvious that state court decisions, legislative action and referendum affirming marriage equality are not at all affected by this ruling. You should know this because the court is not ruling on whether or not states can affirm marriage equality. The question they are deciding is whether the states can ban it.

    • Having marriage equality in states that affirm it is great but not having portability of your marriage is a serious impediment. If you need to move to a non-gay marriage state for work, health, retirement, etc. do you have to then choose between your marriage or your job for example?

  • “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.”

    Please. If you presented the issue of slavery to the Kentucky General Assembly today they’d still vote to support it. Coal mines, meth labs, whiskey, and a horse race. Cracker heaven.

    • I always love those who attempt to point out the ignorance of others while showing their own. I’ll admit that Kentucky will be one of the last states to ever voluntarily allow gay marriage, but if you want to paint the entire state with that broad brush, you’re just not very smart.

  • If the Justices had truly studied history, they would have known that it is only in the past few hundred Christian-era years that has demonized us. Many societies prior to – and since – have embraced our diversity with marriages.

    Should the Supreme Court deny us equality, I am seriously thinking of chaining myself with a collar to a metal post in the city park – with no food or water – in protest. I want them to see what an animal without dignity looks like. I will accept charitable sips of water and perhaps a blanket at night – and I’ll need a shelter so I don’t offend by performing bodily functions – but a box with a chamber pot will suffice. I have yet to decide what, if any, words of protest should accompany me…or if the actions will speak for themselves.

    I don’t believe that I will need to do this after the Supreme Court ruling in June however. I have every confidence that at least five of them will realize that now is the time for rainbow equality. I’m hoping for six.

  • And, what if the sky fell tomorrow? It’s not going to happen. Likewise, SCOTUS is not going to allow states to ban same sex marriage.

    • Let’s hope you’re right but remember that the SCOTUS upheld sodomy laws the first time around and it took 17 years before they reversed that error. Let’s hope we are not faced with that scenario again. Kennedy is likely to be the swing vote unless he cowards out at his profiles in courage moment in history.

      • Honestly, given Kennedy’s comments during the oral argument, I suspect he will wimp out when it comes to declaring state bans on same-sex marriage unconstitutional per se. However, I think that he and Roberts may well join together and decide that the states than ban same-sex marriage must recognize same-sex marriages performed in states where they are legal pursuant to the Full Faith and Credit clause. In the long run, this will have the same effect as striking down the bans. However, it will cause a great deal of upheaval for people who have entered into marriages in states where same-sex marriage has been allowed pursuant to federal court decisions.

        Of course, both for these couples and for the advance of gay rights in general, I hope they declare the bans unconstitutional. To re-state the obvious, at this point, we just have to wait and see.

  • The anti-gay protesters are doing the Nazi salute in the picture. Just more evidence that these people are on the wrong side of history and that good will ultimately prevail because most civilized people do not support injustice and hatred. These values do not support the basic tenets of the United States Constitution.

  • I think if SCOTUS does not uphold marriage equality at national level, we will see legislation in nearly every state attempting to put a constitutional amendment or laws banning marriage equality back on the books and if they don’t pass they will try again every year forever. Every state has at least one fanatic like Michelle Bachmann in it’s legislature. No matter what it will be chaos and lawyers will be busy for years .

    • They wouldn’t need to put anything back on the books. State laws that are struck down by the courts remain on the books. They are just unenforceable because of the federal courts’ injunctions. They don’t go away just because they are struck down. That’s why, if we lose at SCOTUS, the states will seek to vacate the injunctions, which in turn will make the bans enforceable again.

    • There will be lawsuits flying like nobody’s business. And people who don’t like the outcome will not abide.

  • If we lose at SCOTUS, every state that got marriage equality via federal court order is going to lose it. It might take a few months for the process to play out, but we would definitely go from 37 states to 17. It would be the reverse of the dynamic we saw last October.

    The lower court injunctions are based on an interpretation of the US Constitution which would have been rejected by SCOTUS. Thus none of the injunctions will stand for very long after a ruling.
    HRC’s “legal director” is misinforming the public when she claims that this will be a matter of which attorney general decides to seek vacatur. It won’t. Every attorney general is bound to uphold his or her state’s constitution. While some AGs refused to defend state marriage bans, they did so only because they had concluded that the bans violated the US Constitution. With that justification gone, the AGs would have an ethical obligation to seek vacatur of the injunctions. And if an AG refused to act, you would quickly see moves to compel the AG to take that action.

    Fortunately, even in this nightmare scenario, the existing marriages in those 20 states almost certainly would be allowed to stand. An interesting political question is what would happen if SCOTUS rules against us on Question 1 but for us on Question 2. Would our movement remain committed to fight for marriage equality in every state, when LGBs would have the option of traveling to one of the 17 equality states and then returning home?

    • Exactly! It would be very disruptive to have the validity of marriages entered into in those 20 states thrown into question, but in the long run, a favorable ruling on the Full Faith and Credit clause would have almost the same effect as a favorable ruling in Question 1, at least with reference to marriage. It would deny protected status to LGBT individuals, though, which would be problematic.

    • No it goes to 11 states and 39 would ban it

  • “This definition has been with us for millennia, and it’s very
    difficult for the court to say, ‘Oh, well, we know better,”

    Early Christians were repelled by Roman sexual practices, and the early apologetic literature contrasts Christian chastity with the license of the “pagan” cultures around them. The legitimization of Christianity in the Empire was closely attended by bans on male prostitution (Philip the Arab), sex with children and slaves/concubinage (Constantine), then all prostitution (Theodosius), then all homosexual acts and heterosexual fornication (Justinian). the Code of Justinian codified most of what we think of as Christian marital and sexual strictures into law.

    A same-sex union was known in Ancient Greece and Rome, ancient Mesopotamia, in some regions of China, such as Fujian province, and at certain times in ancient European history. These same-sex unions continued until Christianity became the official religion of the Roman Empire. Although homosexuality was not considered a major offense during the early Roman Empire, homosexual encounters and homosexual behavior came to be viewed as unacceptable as Christianity developed.

    A law in the Theodosian Code (C. Th. 9.7.3) was issued in 342 AD by the Christian emperors Constantius II and Constans, which prohibited same-sex marriage in ancient Rome and ordered that those who were so married were to be executed.

    The Buggery Act of Henry VIII (as re-enacted by Elizabeth I in 1563) was adopted in the New World, often verbatim, by the original thirteen Colonies, and buggery was punished by death.

  • This article totally overlooks the second issue before the Court in this case – whether the Full Faith and Credit Clause requires states which ban same-sex marriage must recognize the validity of same-sex marriages that were entered into legally in states where it is legal. If they do not rule that the bans are unconstitutional per se, but that the Full Faith and Credit Clause requires, say, Texas and Alabama to recognize the validity of marriages entered into in Massachusetts and Maryland, the practical outcome will be the same.

  • They all signed off on the Windsor report 18 months ago after they chopped it up. But the left is screwed because of something they left in there. That states had the sovereign rights to decide who got married and the federal government could not.

    • …and the Full Faith and Credit clause requires them to recognize the validity of actions taken by other sovereign states. Consequently, as long as any state has approved same-sex marriage, same-sex couples will be able to go there, get married, and then return to their home states, which will have to recognize the validity of their marriages.

    • States don’t have the right to enforce unconstitutional laws though.

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