By Lydia Wheeler - 04/27/15 06:00 AM EDT
The Supreme Court will hear arguments this week in a landmark gay marriage case that many legal experts believe will pave the way for same-sex couples to wed in all 50 states.
Same-sex marriage has been the subject of fierce national debate for more than a decade, with more than 30 states and the District of Columbia allowing same-sex couples to marry. More than a dozen other states, meanwhile, have approved bans on gay marriage, touching off a series of legal battles around the country.
Most of those bans were struck down as unconstitutional in a succession of federal court rulings. But the string of victories for gay marriage supporters came to an end in November, when the 6th Circuit Court of Appeals upheld bans in Ohio, Tennessee, Michigan and Kentucky.
The ruling created a lower court split, prompting the high court to answer calls from those on both sides of the fight to revisit same-sex marriage.
The justices’ refusal to take up the issue until now, some court watchers suggest, is a good indicator that it will be become a legal right for all citizens.
“If they were going to uphold state bans, they wouldn’t have let it go this far,” said Neil Siegel, a law and political science professor at Duke University Law School. “Because the court declined to get involved earlier, you have many more same-sex couples that have lawfully been able to marry, and the court allowed that. I don’t think they are going to say, just kidding, or throw the country a curve ball now.”
Those predicting a win for gay marriage supporters also point to the court’s 2013 5-4 ruling that the federal government cannot deny benefits to legally married couples. The opinion struck down federal restrictions under the Defense of Marriage Act (DOMA) that denied federal benefits to same-sex couples in states that recognize same-sex marriage.
The court, in another 5-4 holding, avoided ruling on the merits of California’s ban on same-sex marriage, known as Proposition 8, saying it did not have legal standing.
Justice Anthony Kennedy, who is often the swing vote, dissented from that decision and said the court could have ruled, suggesting to some that he would have come down in favor of gay marriage.
The court declined to hear subsequent cases relating to the state bans, though liberal-leaning Justice Ruth Bader Ginsburg vowed the court would not duck the issue.
The 6th Circuit Court’s ruling was seen as forcing the Supreme Court to finally weigh in.
In a sign of the case’s significance, the justices have dedicated two and a half hours to arguments on Tuesday morning, 90 minutes more than the court typically allows.
The case, known as Obergefell v. Hodges, is over whether states are required to license a marriage between two people of the same sex and whether states have to recognize same sex-marriage licenses from other states under the 14th Amendment.
While the court could issue a partial ruling requiring only that states recognize all marriage licenses from other states, Siegel said a sweeping ruling in favor of marriage equality is more likely.
In the circuit court opinion, Judge Jeffrey Sutton said marriage laws are needed to create and maintain stable relationships for children.
“By creating a status (marriage) and by subsidizing it (e.g. with tax-filing privileges and deductions), the States created an incentive for two people who procreate together to stay together for purposes of rearing offspring,” he wrote in the opinion. “That does not convict the states of irrationality, only of awareness of the biological reality that couples of the same sex do not have children in the same way as couples of opposite sexes and that couples of the same sex do not run the risk of unintended offspring.”
The case has attracted more than 100 briefs from groups on both sides.
Filing in support of the states, the Michigan Catholic Conference, for instance, argues that marriage is the “foundation of family and society” and “until recently it was universally understood that marriage is the biological union of man and woman as nature intended.”
“This ancient understanding reflects the undeniable fact that only such a union offers the possibility of procreation,” the conference said, according to court documents. “Such procreative possibilities fulfill a societal purpose and alone justify elevating marriage over all other intimate relationships.”
In another brief, major religious leaders and organizations including The Church of Jesus Christ of Latter-day Saints, said recognizing a right to same-sex marriage would harm religious liberty and generate conflicts between church and state.
“Notwithstanding our theological differences, we are united in declaring that the traditional institution of marriage is indispensable to the welfare of the American family and society,” the church contends.
While arguments for tradition carry some weight in constitutional law, experts say they aren’t the only authority.
“If they were, we would be saddled with some horrible traditional state practices like slavery and Jim Crow and racial segregation and subordination of women in and out of marriage,” said Siegel. “The fact it’s always been a certain way doesn’t mean the Constitution requires it or even allows it to stay that way.”
Legal scholars say conservative justices like Antonin Scalia are likely to argue gay marriage would open the door for other nontraditional forms of marriage, like bigamy, polygamy, incest and bestiality.
“They call it the wedge argument, as in if you put a wedge in the dam and let a couple of drops through, the whole dam is going to come down,” said Jesse Choper, a professor or public law at the University of California, Berkeley School of Law.
Regardless of these arguments, Choper said he’s expecting a 5-4 ruling from the court in June in favor of same-sex marriage, though he wouldn’t rule out a more decisive ruling in which one or more of the conservative justices — potentially Chief Justice John Roberts — sided, along with Kennedy, with the court’s liberal wing.
Roberts, Choper said, could vote in favor of marriage with the other five justices to preserve the image of the court in an era of expanding gay rights or to control who writes the decision.
“If there’s already five, it doesn’t cost him anything to make it six,” he said. “The deed is done.”
And if he assigns the opinion to himself, Choper said he could write a much narrower decision.
Even so, groups on both sides of the issue view the case as a watershed moment in a debate that has stretched back more than a decade.
Gay rights proponents began lining up on Friday in hopes to get a seat for the arguments. By Saturday morning, roughly 30 people were waiting in front of the court, sitting in sleeping bags and on folding chairs draped in American and rainbow-colored flags.
Among them was Jason Hewett, who traveled from Gainesville, Ga., for a chance to witness the arguments. Hewett, a gay man who was on hand for both the DOMA and Prop. 8 cases, took his place in line more than 72 hours before the arguments were to begin. After one night on the sidewalk, he said he was resolved to weather three more — despite expectations of rain — to be in the court's chambers on Tuesday.
"This group of cases is poised to grant marriage equality for the entire nation, which nothing has done so far," he said. "So it really is historic."
— Ben Goad contributed.