Last Tuesday, April 28, the U.S. Supreme Court heard oral argument in Obergefell v. Hodges and its companion cases. In this case and its companion 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 know exactly why the Court decided to grant cert in the 6th Circuit cases while refusing to hear earlier cases. The questioning at the Supreme Court appeared fairly equally divided. It seemed fairly clear that there are at least four Justices who would reverse the 6th Circuit and at least three Justices who would affirm the 6th Circuit. It appeared from oral argument that Justice Kennedy, the key vote, leaned toward reversing the 6th Circuit.
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 decides that all states must recognize a marriage which is valid under the laws of another state, the first issue may be rather moot.
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 had had those bans overturned? If the Court also found that all states must recognize a same-sex marriage validly performed in another state, then it may not matter, at least to the affluent. They could simply travel to a state which allows same-sex marriage which does not have a residency requirement.
The Court is expected to hand down an opinion 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.
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
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