Marriage is the question of the millennia, and now it rests before the U.S. Supreme Court justices. The Court heard more than two hours of oral arguments on last week, and is expected to make a decision about the legality of same-sex marriage in June.
Analysts said the justices could go several directions on the issue. The Court could rule that same-sex marriage is legal nationwide; currently, it is legal in 35 states. The other 15 states have bans on same-sex unions, but some offer domestic partnerships. Some of those states, including Nebraska, Texas, Arkansas and Michigan, have continued bans while litigation appeals take place. Other states, like Alabama and Florida, were forced into allowing same-sex marriages by court decisions.
Another possibility, according to legal analysts watching the case, is that the justices will tell states they must recognize same-sex unions performed in other states. The fact that a portion of states does not recognized a homosexual union as a legal marriage is a key factor in the case before the court. Many states adopted new rules for marriage in the early 1990s, and updated laws later, as the issue gained prominence.
The case argued before the U.S. Supreme Court consolidated six cases from Ohio, Tennessee, Kentucky and Michigan. In the case, the 32 plaintiffs filed because the legal status of their marriages were in question after moving to states where same-sex unions were not recognized.
One such case involves Valeria Tanco and Sophy Jesty of Tennessee, who signed onto the lawsuit two years ago. The two women married in New York four years ago. The couple moved to Tennessee, where same-sex unions are not recognized, three years ago to take jobs at the University of Tennessee. The couple has a daughter and put their names on her birth certificate. While there does not appear to be a law against that, stability of children in same-sex homes is one of the issues facing the court.
Justices are not taking the arguments on the definition of marriage lightly. Justice Anthony Kennedy said he recognized the definition of marriage has been one-man for one-women for “millennia” and this decision to question that definition would be difficult for a court to act without presuming it knows better than those of thousands of years before.
The High Court’s decision would affect other situations beyond the scope of the oral arguments. Some fear a decision supporting the legalization of homosexual unions nationwide would prompt polygamists to attempt to gain legitimacy. Austin Nimocks of the Alliance Defense Fund, which has opposed same-sex marriage, said in an interview that a positive outcome for homosexuals would most certainly lead to more talk of legalizing polygamy. His rational is that such a decision would move marriage, philosophically, away from procreation and meeting the needs of children to fulfilling adult desires. From that point, Nimocks said, there is not a defense to deny anyone who wanted to marry in any type of relationship.
Another issue playing into the courtroom argument is the will of the people. Americans have voted on the issue in 32 states and always voted for the one-man, one-woman marriage definition. One of the most publicized votes was Proposition 8, which was approved by California voters in 2008, but was later knocked down in the courts. The case made its way to the U.S. Supreme Court, but was dismissed in 2013 with the court telling a lower court to vacate its decision to uphold the case. That left a district court’s decision against the law to take effect.
However, the decision was not based on the law’s validity or constitutional measures. The State of California chose not to defend the law before the court, leaving its defense to lobbying and attorneys’ groups that support traditional marriage and Proposition 8. The reason the justices dismissed the case was because the law’s advocates could not legally represent the case before the court. The U.S. Supreme Court justices have much to consider as it ponders marriage, what it constitutes legally, and the question of the millennia.
By Melody Dareing
Photo by Carolyn Davis – Creativecommons Flickr license