Late last week, the U.S. Supreme Court granted a writ of certiorari in Bourke v. Beshear, DeBoer v. Snyder, Obergefell v. Hodges, and Tanco v. Haslam. In each of these cases, the 6th Circuit of the U.S. Court of Appeals had upheld state bans on gay marriage and / or the right of states to refuse to recognize gay marriages performed in other states. Prior to that ruling, the 4th, 7th, 9th, and 10th Circuits had all struck the bans on gay marriage in states under their jurisdiction.
Of course, nobody except the nine Supreme Court Justices themselves knows exactly why the Court decided to grant cert in the 6th Circuit cases while refusing to hear earlier cases. Prior to the 6th Circuit decisions in the cases in which the Supreme Court granted cert, the Supreme Court saw no reason to interfere. Perhaps that was because the Circuits had decided the issue in the manner the Supreme Court thought it should be decided. Perhaps that was because the Circuits were in agreement. Perhaps it was because the Supreme Court did not want to get involved in this politically charged issue until absolutely necessary. It appears that the last reason is certainly true, perhaps in combination with the other reasons.
If the Court reverses the 6th Circuit and finds a constitutional right to marriage for same-sex couples, the same-sex marriage issue would be decided nationally: Same-sex marriages would be allowed anywhere in the United States. If the Court finds that states can deny same-sex couples the right to marry, then the Court would get to the next issue: Must one state recognize a marriage which is valid under the laws of another state? If the Court finds that same-sex couples do not have a constitutional right to marry, what will happen to same-sex marriages performed in states with bans on same-sex marriage but which have had those bans overturned?
The Court is expected to hear oral arguments in these cases in late April, with an opinion likely by late June.
As the Supreme Court considers the issue, more than 70% of people in the United States live in a state which allows same-sex marriage.
We will see how these cases develop.
Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (800) 846-1555