On the brink of marriage equality

With more than 75 active lawsuits involving the freedom to marry currently at the state and federal levels, exploring the state of marriage equality in the United States can quickly become a confusing, headache-inducing endeavor.

On the brink of marriage equality

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With more than 75 active lawsuits involving the freedom to marry currently at the state and federal levels, exploring the state of marriage equality in the United States can quickly become a confusing, headache-inducing endeavor. Here are the answers to some questions you might have about what we can expect next in the marriage-equality movement.

Why all the court cases?

Currently, 19 states and the District of Columbia allow same-sex marriage. In the past year, there has been an explosion of court cases dealing with marriage equality in states all throughout the country, yet the majority of the jurisdictions where it’s legal garnered the freedom to marry through state legislation or popular vote, not litigation. 

In 28 out of the remaining 31 states that do not have marriage equality, there are constitutional amendments in place that exclude same-sex couples from getting married, so state legislatures cannot simply change marriage law. In the remaining three states — Wyoming, Indiana and West Virginia — it is highly unlikely that their state legislatures would pass a bill allowing marriage equality. Thus, there has been an enormous boom of marriage-equality lawsuits all throughout the country, mainly because it’s the only way to legalize same-sex marriage in their respective states, or legislation and ballot initiatives are not viable options due to the political climate.

What court cases are up next?

Aug. 6: The U.S. Court of Appeals for the Sixth Circuit held oral arguments for six different marriage-equality cases. The court has jurisdiction over Kentucky, Michigan, Ohio and Tennessee. In each of these states, federal judges have ruled in favor of marriage for same-sex couples. One or more of these cases could ultimately go before the United States Supreme Court.

Aug. 26: Oral arguments for two separate cases from Indiana and Wisconsin will be heard by the Seventh Circuit Court of Appeals, which covers those two states and Illinois.

Sept. 8: Oral arguments will be heard by the Ninth Circuit Court of Appeals, which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. The two specific cases — Sevcik v. Sandoval and Latta v. Otter — come from Nevada and Idaho, respectively. A ruling in favor of marriage equality out of one of the states would be binding to each of the states within the circuit.

When might a U.S. Supreme Court case happen?

James Esseks, director of the LGBT Project at the American Civil Liberties Union, told PGN he’s optimistic about the U.S. Supreme Court hearing a marriage-equality case by June. He said the nation’s top court could hear one of the cases from Utah, Oklahoma or Virginia.

“These particular cases all say that there is a fundamental right to marry, which includes same-sex couples,” Esseks said. “The next step for those three cases is that the losers are going to ask the Supreme Court to review the ruling — I would guess very soon. I think the chances that the U.S. Supreme Court takes that decision potentially by next June is very high because this is an issue of serious importance for the country.”

Asked why a case hasn’t been taken to the Supreme Court yet, Esseks said SCOTUS waits for more cases from the lower courts, which is why marriage-equality wins at the various circuit courts of appeals are so important. 

“The Supreme Court is typically cautious and wants there to be a rough consensus among the lower courts before hearing any cases,” Esseks said. “The Supreme Court may wait a little bit to see what other decisions come out; they’re going to have a menu of at least three cases, maybe even up to six, to choose from, and then it will at least choose [whether or not] to grant review. We may know that early in the fall, or we may know that in December or January.” 

How was the PA decision different?

In Pennsylvania, Republican Gov. Tom Corbett decided not to appeal the U.S. District Court decision in favor of marriage equality, saving the state from an appeal and potential delay of the ruling’s implementation. 

Esseks hopes to see the same from other Republican governors in the future.

“It was an incredible act of leadership on Corbett’s part to say, ‘I’m not going to waste any time on this any more,’” Esseks said. “I hope that other Republican governors will follow his lead by looking around and saying, ‘Look, we can see where this issue is going with the courts, with the people at large and this is an issue we shouldn’t be fighting over.’”

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