Supreme Court agrees to rule on gay marriage

Richard Wolf | USA TODAY

Show Caption Hide Caption Supreme Court agrees to rule on gay marriage The Supreme Court agreed Friday to resolve the national debate over same-sex marriage once and for all. They will hear 2 1/2 hours of oral arguments in April and issue a ruling before the current term ends in late June.



WASHINGTON — The Supreme Court agreed Friday to resolve the national debate over same-sex marriage once and for all.

The justices will consider four cases from Michigan, Ohio, Kentucky and Tennessee, consolidated and heard together. They will hear 2 1/2 hours of oral arguments in April and issue a ruling before the current term ends in late June.

The new challenge to states' gay marriage bans is destined to become even more of a landmark than the two cases decided by the court in 2013 — United States v. Windsor, which forced the federal government to recognize gay marriages, and Hollingsworth v. Perry, which made California the 13th state to allow them.

Those rulings, while historic, did not resolve the threshold questions in the debate: whether gays and lesbians have a constitutional right to marry, or whether states have the right to ban the practice. This spring's case will answer those questions.

"This is the beginning of the end game on the freedom to marry," said James Esseks, who leads the effort for the American Civil Liberties Union.

The justices' hands were forced by a split among federal appellate courts, created when the U.S. Court of Appeals for the 6th Circuit upheld four states' marriage bans in November. While gays and lesbians can marry in 36 states, most recently including Florida, the practice is banned in Michigan, Ohio, Kentucky and Tennessee, along with 10 other states.

The court had sidestepped the issue in October, when it let stand appeals court rulings striking down gay marriage bans in Virginia, Indiana, Wisconsin, Oklahoma and Utah. Those rulings and a later appeals court decision affecting Idaho and Nevada drew in neighboring states as well. As a result, more than 70% of Americans live in states where gay marriages are legal, and thousands of couples have tied the knot.

The high court's long-awaited decision to intervene pleases both sides in the debate. National gay-rights groups have been pressing for a 50-state solution. The National Organization for Marriage and others that oppose gay and lesbian unions also wanted the court to step in.

"We've reached the moment of truth — the facts are clear, the arguments have been heard by dozens of courts, and now the nine justices of the Supreme Court have an urgent opportunity to guarantee fairness for countless families, once and for all," said Chad Griffin, president of the Human Rights Campaign, the nation's largest gay rights organization.

"The U.S. Supreme Court now has the opportunity to issue a long-overdue ruling to restore the freedom of the people to uphold marriage in their state laws as the union of a man and a woman," said Tony Perkins, president of the Family Research Council. "Lower court judges have robbed millions of people of their voice and vote on society's most fundamental relationship – marriage."

The justices will consider two questions — whether the 14th Amendment to the Constitution requires states to license marriages between same-sex couples, and whether it requires states to recognize such marriages when licensed by other states. The Michigan case involves the first question, the Ohio and Tennessee cases involve the second, and the Kentucky case includes both.

"I can't wait to walk up those steps and have the Supreme Court understand that we're just like everyone else," said James Obergefell, the lead plaintiff in the Ohio case. Because of the order in which the court listed the four cases, it appears likely the combined case will be named Obergefell v. Hodges. Richard Hodges directs the Ohio Health Department.

JUSTICES REMAIN DIVIDED

Since the gay marriage movement gained steam in the 1990s from Hawaii to Vermont, 30 states have passed constitutional bans. Eleven states and the District of Columbia legalized same-sex marriage by legislative action or voter initiatives. In 33 more states, judges have made the same call, though some of those decisions were delayed or overruled.

Most of the progress by gay-rights groups has come in the last two years: The number of states where gays and lesbians can marry has nearly doubled since October alone, and tripled since the court's 2013 rulings.

The justices appear as split today as they were then, when Justice Anthony Kennedy wrote the 5-4 decision striking down a key part of the federal Defense of Marriage Act. In dissent, Justice Antonin Scalia seethed that it would lead to exactly what has happened since — a flurry of court rulings using the high court's equal protection reasoning to strike down state bans.

But while divided, the justices have made a series of procedural moves that allowed same-sex marriage to proliferate, particularly by refusing to hear five states' appeals in October. They even refused to halt gay and lesbian marriages in Idaho while the state challenges the verdict of the 9th Circuit Court of Appeals — something they had done last year in Utah and Virginia.

The swing vote remains Kennedy, who has authored the last three major rulings advancing the cause of gay rights. On one hand, he has defended voter-approved constitutional amendments, most recently in a Michigan case last year that upheld the state's ban against racial preferences in university admissions. But he struck down the federal same-sex marriage ban as an affront to the constitutional rights of gays and lesbians.

Since then, dozens of federal and state court judges have toppled marriage bans for the same reason the Supreme Court ruled against DOMA, mostly citing gay and lesbian couples' right to equal protection or due process under the Constitution. Since September, however, three federal courts have gone the other way -- in Louisiana, Puerto Rico and the four-state 6th Circuit.

Circuit Judge Jeffrey Sutton, once considered a potential Supreme Court nominee for a Republican president, issued that 42-page appellate decision, with fellow GOP nominee Deborah Cook concurring. He said lower court judges' hands are tied by a one-sentence Supreme Court ruling in 1972 that "upheld the right of the people of a state to define marriage as they see it."

In response, couples in all four states asked the Supreme Court to hear their appeals. State officials in Michigan, Ohio and Kentucky, though victorious, agreed that the justices should weigh in. Gay couples and state officials in Louisiana sought to have their case considered before the 5th Circuit Court of Appeals rules, but the justices denied that request.

The Obama administration is certain to enter the case on the side of the gay and lesbian plaintiffs.

"It is time for our nation to take another critical step forward to ensure the fundamental equality of all Americans — no matter who they are, where they come from, or whom they love," Attorney General Eric Holder said.

STATES MAKE THEIR CASE

The Michigan case is the simplest of the four that the court considered. April DeBoer, 43, and Jayne Rowse, 50, are nurses and foster parents who have separately adopted four children, including two with special needs. They seek the right to marry and to joint adoptions; currently, each child has only one legal parent.

"This is a monumental thing," Rowse said. "In my lifetime, I never thought that this would ever happen -- not even in my kids' lifetime."

Their case is unique because it included a two-week trial with "expert testimony presented in the fields of sociology, psychology, demography, history, and law," their brief said. "Issues relating uniquely to the children were examined thoroughly in the crucible of the trial process."

The state echoed Judge Sutton in its response brief. "This case comes down to two words: Who decides?" it said. "The history of our democracy demonstrates the wisdom of allowing the people to decide important issues at the ballot box, rather than ceding those decisions to unelected judges."

The Ohio case was brought by four same-sex couples with children, one adopted child and two men whose partners died. All were married in other states and are seeking to have the marriages recognized in Ohio through birth and death certificates.

Pam Yorksmith, one of the clients, pronounced herself "over the moon" with excitement about the Supreme Court's agreement to hear her case.

"Petitioners have been denied the full dignity and financial and emotional benefits Ohio provides to different-sex spouses, including, most urgently, the recognition of their marriages on critical family identification documents such as birth and death certificates," the challengers' brief says.

"These cases are about love, from birth to death. The relationships at the heart of each case involve the love spouses share, with each other and with the children they jointly raise, and the love that survives the death of a spouse."

The Kentucky case combines two gay couples seeking to marry and four other couples who want their marriages, performed from Connecticut to California, recognized in their home state.

One couple is raising four children. Another has been together 47 years. A third left the country to marry in Canada a decade ago.

Greg Bourke, the lead plaintiff who has been together with his partner Michael De Leon for more than three decades, said, "I feel like we've been waiting 32 years to have this day arrive."

After losing at the district court level, the state's Democratic attorney general, Jack Conway, refused to participate in the appeal. Gov. Steve Beshear, also a Democrat, named outside counsel to handle the case.

The Tennessee case features three couples married in New York and California. One lesbian partner had a child while the lawsuit was pending. A gay partner was deployed and has returned from Afghanistan. A third couple has two adopted children.

"We live in fear for ourselves and our little girl because we don't have the same legal protections in Tennessee as other families," said Valeria Tanco, the lead plaintiff in the case.

"The court of appeals' holding not only denies recognition to petitioners' own marriages and families, but also establishes a 'checkerboard' nation in which same-sex couples' marriages are dissolved and re-established as they travel across the country," their brief says. "That is the antithesis of the stability that marriage is supposed to afford."

Tennessee was the only state that asked the Supreme Court to let the appeals court ruling stand. The state's marriage law is "a proper exercise of its own sovereign authority within our federal system," it said.

The four states are among 14 where gay marriage remains against the law. The others are Alabama, Arkansas, Georgia, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, South Dakota and Texas.