Gay Marriage Case Could Mandate ‘Recognition’ as Law of the States

The right of 12 same-sex couples to marry—and the rights of states to choose whether to recognize those marriages—is now in the hands of the U.S. Supreme Court.

On April 28, the Supreme Court heard oral argument in Obergefeel v. Hodges, centered on whether  same-sex couples have a constitutional right to marriage and, if not, whether states may refuse to recognize same-sex marriages lawfully performed out of state.

According to Lisa Soronen, executive director of the State and Local Legal Center, the case has far-reaching implications for states.

“On one hand, states typically recognize marriages performed in other states even if state laws vary on who may marry,” she wrote in CSG’s Capitol Comments blog. “On the other hand, if ’recognition’ becomes the law of the land, just one state allowing same-sex marriages could mean, practically speaking, that all same-sex marriages (performed in the state allowing them) would have to be recognized.”

The court case revolves around 12 couples challenging same-sex marriage bans in Ohio, Michigan, Kentucky and Tennessee, where federal courts upheld state laws banning same-sex marriages.

For now, it is unclear how the Supreme Court will decide, Soronen said. “As usual, swing-Justice Anthony Kennedy’s vote will be crucial in this case. And as usual, Justice Kennedy’s questions during oral argument didn’t give a clear answer as to what he is thinking.”

During the opening arguments, Kennedy seemed to agree with Chief Justice John Roberts’ suggestion that adopting the plaintiff’s argument would “redefine” marriage. Kennedy added that the definition of marriage between one man and one woman “has been with us for millennia.”

Kennedy’s comments then took a new direction, said Soronen, when he noted that within a decade, the U.S. Supreme Court went from desegregating schools to overturning bans on interracial marriage.

Kennedy’s questioning of Michigan attorney John Bursch’s argument opposing a constitutional right to marriage for same-sex couples, in which he argued states don’t believe such marriages enhance the dignity of both parties, also could shed light on how Kennedy might come down on the case.

“Dignity was the theme of Justice Kennedy’s opinion in United States v. Windsor, where the court struck down the Defense of Marriage Act,” said Soronen.

Regardless of the outcome, the Supreme Court’s decision will have significant implications in the states.

In 2003, Massachusetts became the first state to license marriages to same-sex couples after the Supreme Judicial Court ruled that banning same-sex marriage was unconstitutional. Today, same-sex marriage is legal in 37 states. Federal courts struck down laws banning same-sex marriage in 21 of those states, while state courts took action in five additional states. State lawmakers passed laws permitting same-sex marriage in seven states, while voters held referendums granting marriage equality to same-sex couples in three other states.

Legal experts are divided over what would happen in the 21 states where federal courts struck down same-sex marriage bans should the Supreme Court rule against a constitutional right to marriage inObergefeel. Some experts contend that same-sex marriages in those states would be deemed valid, while others say the courts would need to take up these cases individually.

The Supreme Court votes this week on the case and will issue its decision in June.