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Will the Supreme Court Kill Marriage Equality?

tn.marriage.rulingAs we reported a last week, the U.S. Supreme Court announced it would review the ruling in a 6th Circuit marriage equality case where the Court of Appeals rejected the claim that gay and lesbian couples have a constitutional right to marry and to have their marriages recognized by other states.

The 6th Circuit has jurisdiction over the states of Michigan, Ohio, Kentucky and Tennessee and although the Supremes chose to hear a Michigan case, the mini Defense of Marriage Acts (mini DOMA’s) from Ohio, Kentucky and Tennessee were also upheld by this ruling.

Until the 6th Circuit’s ruling upholding Michigan’s mini DOMA, every other federal court – including the 4th, 7th, 9th and 10th Circuits – had all ruled in favor of marriage equality claims throughout 2014.

Even though appeals were filed in all of those cases, the Supreme Court refused to review those rulings.

That begs the question – Why now? Why did the Supreme Court decide to review this particular case after refusing to hear all the others?

Will they use this opportunity to kill marriage rights once and for all?  Or will they finally grant marriage equality to all LGBT couples who live in every state in America?

One reason they chose to intervene now is precisely because it is the job of the Supreme Court to settle splits among the lower courts. Here all of the lower courts but one were overturning the state marriage bans, requiring the Supreme Court to settle the disagreement and determine the ultimate constitutionality of the mini-DOMA’s.

The Court announced it would limit consideration of the issue to the following questions:

(1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

(2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state?

Supreme Court watchers and LGBT rights activists want to know whether the Court will use this particular case to declare a constitutional right to marry for every state in the U.S., and to have those marriages recognized in every other state.

The answer depends on what legal rationale the court uses to decide the case, especially since the various courts that have overturned the bans have used different legal reasoning for doing so.

This case creates an opportunity for the Supremes to create a clear legal pathway for lower courts to follow in future LGBT rights cases.

It’s conceivable (and desirable) that the same majority that overturned parts of the federal DOMA in the Edie Windsor case (that overturned parts of the federal DOMA) will get together and demolish the state mini DOMA’s.

But, some legal beagles are speculating that Chief Justice Roberts may want to join the majority this time – maybe even write the majority opinion himself – thereby taking the opportunity to give marriage equality a very narrow win. In other words, keep the haters a little happy while making the activists feel slightly victorious if not confused.

If that happens, oy. We could be looking at a big mess while some states are still able to maintain a second-class of marriage rights for LGBT couples.

The other potential – and most likely – outcome of course is that the majority of the Supreme Court will see what most Americans have witnessed ever since gay and lesbian couples were first allowed to marry that we are living our lives, raising children, working, buying homes and participating in the American dream.

And in the meantime the sky has not fallen! No one’s marriage has been threatened. The children are thriving.

Well, lets hope that’s what happens anyway.

If you have a will or trust and advance directives giving your partner/spouse inheritance and decision making rights and you keep those documents up-to-date you’ll be fine – legally – no matter what song the Supremes sing.

But they really ought to take a song out of Aretha Franklin’s playbook and give the LGBTQ Community a little R-E-S-P-E-C-T! (Sorry, I just couldn’t resist!)

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