Same-sex marriage and the Supreme Court

Editor’s note: Last week Alabama became the 37th state where marriage between two people of the same sex is now legal. The momentum for marriage equality has been building rapidly — since the beginning of 2014, same-sex marriage has become legal in 20 states.

The United States Supreme Court is scheduled to make a ruling on whether same-sex couples have a constitutional right to marry as it decides petitions from Tennessee, Kentucky, Michigan and Ohio — states that fall under the jurisdiction of the U.S. Sixth Circuit Court of Appeals, which last November upheld bans on same-sex marriage. In 2004, Ohio voters passed a constitutional amendment banning gay marriage.

We’ve turned to local scholars in the fields of political science and gender/equality to share their insights into the Court’s upcoming decision. Whichever way the Justices of the Supreme Court decide, their ruling will be historic and impactful on American culture. — Connie Post

Recognition of same-sex marriage: It’s a new phenomenon

By Mark Caleb Smith, Ph.D.

Change in the 21st century arrives in a blur.

In 2008, only two states, Massachusetts and Connecticut, recognized same-sex marriages. During that election season, both Democrat Barack Obama and Republican John McCain defined marriage as between a man and a woman, as did a majority of Californians, who are not generally known for their backwater conservatism.

As of 2015, this recitation of facts seems as timely as counting tree rings in a petrified forest. Gay marriage has overtaken the land, primarily through the gavel instead of the ballot box. In 2013, the United States Supreme Court handed down United States v. Windsor, which declared that federal laws could not define marriage as only between a man and a woman. The same day, in a different case, the Court did not directly address whether states may define marriage as they see fit, or if they must adhere to the Court’s dictates. That question did not linger.

Using Windsor’s reasoning, federal courts began to strike down statewide bans of same-sex marriage, but the Sixth Circuit Court, in Cincinnati, upheld bans in Ohio, Michigan, Kentucky, and Tennessee. This split, between the Sixth Circuit and other courts, forced the Supreme Court’s hand. As of this coming June, unless the astonishing happens, the Court will likely overturn the remaining state bans and gay marriage will be the law of the land everywhere, including Ohio.

What does this mean? First, Ohio will issue marriage licenses to any couple, regardless of sexual orientation. Second, same-sex marriage, as a constitutional issue, will be finished in the short term and perhaps the long term as well. Once the Court enshrines such a right, there is little chance of that being overturned in the near future. Third, and most critically, this may be the beginning of a long, concerted conflict between gay rights activists and those who oppose same-sex marriage on religious beliefs.

What might that conflict look like? I think there is little chance the Supreme Court would force purely religious institutions to perform ceremonies, like marriages, that violate either the institution’s doctrinal positions or the minister’s conscience. Also, based on precedent, it is unlikely that churches will be required to hire ministers regardless of sexual orientation. The First Amendment’s free exercise clause guarantees, I think, the struggle will take place in other venues. Some of these debates are already with us.

For example, will a religious university be allowed to expel a student who refuses to abide by the school’s policies on sexual behavior? Will same-sex couples be able to sue devout photographers, florists and bakers who work in the marriage industry but refuse them services? Can a religious family that rents a basement apartment turn down an applicant based on sexual orientation? Will federal laws be revised so that university funding (think of loans and grants) is dependent on the school’s policies on sexual orientation? For accredited institutions, will regional accrediting bodies base their decisions on policies related to sexual orientation? For public institutions, these issues are settled, but not for private colleges and universities.

These conflicts between religious belief and gay rights activists will be played out in public and semi-public places. Judges and courts, rightly or wrongly, will settle these disputes over the next decade. The impact on marriage, family and culture is impossible to know since governmental recognition of same-sex marriage, both here and across western society, is a new phenomenon.

Dr. Smith is a professor of political science and director of the Center for Political Studies at Cedarville University.

Same-sex marriage … and beyond

By Katherine Mason, Ph.D.

When the Supreme Court ruled in United States v. Windsor (2013) to overturn the Defense of Marriage Act, it paved the way for lower courts to recognize same-sex unions. Prior to Windsor, same-sex marriage was legal in nine states and the District of Columbia.

Ohio is not among the majority of states that recognize marriage equality, and the resulting patchwork of laws is a source of confusion and financial hardship for LGBT families. When the Supreme Court hears cases from the Sixth Circuit this spring, many expect that the ruling will standardize marriage laws nationwide. What would this mean for LGBT Ohioans?

Marriage equality in Ohio would be a partial, but important step toward recognizing and legally protecting families that already exist. According to research from UCLA’s Williams Institute, as of the 2010 Census there were nearly 20,000 same-sex couples living in Ohio, about 20 percent of whom were raising children.

On one hand, marriage equality would offer same-sex couples the same opportunities that straight couples have to make the best choices for their families: deciding which spouse’s health care plan offers the best benefits and then adding a dependent child to that plan, for example, or taking legally protected time off from work to care for an ailing spouse (a right guaranteed to married couples). A pro-marriage-equality ruling would also help protect an LGBT individual’s parental rights, permitting her/him to legally adopt a partner’s biological child, as well as facilitating joint adoption by same-sex couples.

On the other hand, marriage alone is not a panacea for LGBT inequality: not everyone wants to be married, and not all problems can be solved through marriage. When a married straight woman bears a child, the law normally adds her husband’s name to the birth certificate and grants him parental rights, whether or not he is the biological father. In contrast, even in many states where same-sex couples can marry, the partner of a biological parent is not presumed to be the child’s legal parent. Unless that partner completes the time- and money-intensive process of second-parent adoption, s/he remains a legal stranger to that child.

Furthermore, Ohio is one of 32 states that do not protect LGBT workers from employment discrimination: While some local districts prohibit such discrimination, the Williams Institute estimates that 81 percent of Ohio workers remain legally unprotected on this front. If the Supreme Court rules in favor of marriage equality, a worker could conceivably seek to add a same-sex spouse to his or her employer-provided healthcare, only to be fired for coming out as gay.

Justice Kennedy wrote in Windsor that banning same-sex marriage “demeans the couple” and “humiliates tens of thousands of children now being raised by same-sex couples.” To right this wrong, the Court should rule in favor of marriage equality in Ohio and nationwide. But we also must look beyond marriage, pursuing further equitable policies to make Ohio a welcoming place for diverse people to live and work.

Dr. Mason is a visiting assistant professor of Sociology and Women’s, Gender, and Sexuality Studies at Miami University. She specializes in issues of gender, family, health and social inequality.

Same-sex marriage: The battlefield

Ed Fitzgerald, Ph.D.

The Supreme Court has agreed to decide various cases on same-sex marriage because there is a conflict in the appellate courts. The Fourth, Seventh, Ninth, and Tenth Circuits invalidated state bans on same sex marriage. The Sixth Circuit, which includes Michigan, Ohio, Kentucky, and Tennessee, upheld similar state bans.

The Supreme Court will address two questions: 1) Is marriage a fundamental right? 2) If not, does a state have to recognize a same-sex marriage performed in another state?

The Court has various possibilities regarding question No. 1. First, the Court could focus on the nature of marriage and decide that marriage is a fundamental right protected by the due process clause in the 14th amendment. Denial of this fundamental right to same-sex couples would constitute a violation of the equal protection clause of the 14th amendment, unless the state can show the ban serves a compelling state interest and is the least restrictive means to accomplish this goal. The Court has declared that marriage is a fundamental right in past cases, including Loving v. Virginia, Turner v. Safley, and Zablocki v. Redhail. Alternatively, the Court could affirm the Sixth Circuit’s position that prior decisions only protected traditional marriage.

Second, the Court could focus on the status of same-sex couples under the law. Gays have not been granted any privileged status under the equal protection clause. Gays challenging state bans have to show that there is no rational reason for state discrimination. The Sixth Circuit found state protection of traditional marriage is rational. Alternatively, the Court could follow the logic of Romer v. Evans, which held that Colorado had no rational reason for enacting a constitutional ban on human rights legislation, which discriminated against gays.

Third, the Court could adopt the Sixth Circuit’s finding that marriage is an issue left to the states under the 10th amendment. Federal courts should not interfere with the political processes underway in the states.

Regarding question No. 2, if the Court decides that marriage is not a fundamental right, it is unlikely to invalidate the Defense of Marriage Act (DOMA) provision, which allows states to deny “full faith and credit” to same-sex marriages performed in other states on the ground that such marriages are against public policy. This decision will be left to the states. If the Court, however, is seeking a compromise verdict, it could strike down the DOMA provision and require the states, like the federal government, to recognize legally valid same-sex marriages. This would create greater consistency between federal and state law. It would also deflect some of the likely criticism from both supporters and opponents.

The Court should decide that marriage is a fundamental right protected by the due process clause that can’t be denied to same-sex couples. If not, the Court should find that there is no rational reason to discriminate against same-sex couples by denying them the right to marry. If not, the Court should require states to recognize valid same-sex marriages.

The Court is likely to follow its decision in United States v. Windsor, which struck down the DOMA provision that declared for federal purposes marriage is between a man and woman. The five justices, who voted to strike down the provision, will expand the right of same-sex couples to marry.

Dr. Fitzgerald is a professor of political science at Wright State University.