The New York Times reports that the US Supreme Court has agreed to hear a set of legal challenges to states’ bans on performing or recognizing gay marriage. The decision reversed a trend of the court from earlier this term of letting these cases stand at the lower level. The difference this time was that the Court of Appeals in this specific case, the Sixth Circuit (MI, OH, KY, TN) recently upheld the constitutionality of the bans, thus creating a split at the appellate level. The case will examine two basic questions. First, may a state ban gay marriage? Second, may a state refuse to recognize valid gay marriages performed in other states?
Most commentators expect the court to strike down the laws, thus bringing gay marriage nationwide (thus Texas). Two years ago, in the case Hollingsworth v. Perry, the court specifically punted on the issue and found the intervenor-plaintiffs lacking standing. And while Windsor v. United States, which struck down a portion of the Defense of Marriage Act, largely relied upon federalism, it has been used as the primary vehicle for lower courts to strike down bans on constitutional grounds.
Last year, a District Court Judge in San Antonio struck down Texas’ ban on gay marriage, and a bipartisan panel of the 5th Circuit recently heard that challenge –and appeared willing to uphold that decision. Texas Monthly has a truly great article on that. Accordingly, even though gay marriage may very likely come nationwide by the end of June, it could come to Texas even before then.
Prognosticating on Supreme Court decisions is truly a fool’s errand. But just to be silly, I tend to think that the case will be 6-3, with Chief Justice John Roberts and Justice Anthony Kennedy joining the four liberals. Kennedy’s reasoning in Windsor would just be contradicted at a very basic level if he upheld bans. And Roberts, obsessed as he is with the court’s reputation, simply could not be in the dissent.
Every Governor in the Sixth Circuit is praying tonight that their state’s case is not selected, thus enshrining their name for posterity as the Ferguson, the Board of Education of Topeka, the Heart of Atlanta Motel for this generation.
This case, be it Obergefell v. Hodges, Tanco v. Haslam, DeBoer v. Snyder or Bourke v. Beshear, will go down in history as one of the preeminent civil rights cases of our time. I say bring it on!
