picture: sushiesque, Flickr
picture: sushiesque, Flickr

The last two decades have without doubt been a bit of a roller coaster for gay marriage in the United States. 1996 saw the enactment of President Clinton’s Defense of Marriage Act, which, among other things, denied federal benefits to same-sex couples who are legally married in states that allow gay marriage. This part, a key part of the law, was struck down by a narrow margin in the Supreme Court in 2013, in the landmark case United States v. Windsor. Now, two years later, the Supreme Court is hearing a case that could potentially bring marriage equality to all 50 states, and settle the issue for good.

The case, Obergefell v. Hodges, is actually an amalgam of four different cases, where four individual states (Ohio, Michigan, Kentucky and Tennessee) have implemented laws that prohibit gay marriage. The constitutionality of these laws, in relation to the Fourteenth Amendment’s Equal Protection Clause, has been brought into question, and now gone all the way to the Supreme Court. Proponents of marriage equality are hoping that the Windsor reasoning, which was based on the Fourteenth Amendment, will be extended to ensure further legal rights for gay citizens.

The main questions formed by the Supreme Court for this case are two. First of all, “Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?” The second question, which would be rendered moot by an affirmative answer to the first question, is “Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex, when the marriage was lawfully performed in a state that permits same-sex marriage?”

Basically, this case has three possible outcomes. The worst-case scenario, for marriage-equality activists, is that the Court says no to both of these questions. Same-sex marriages will continue to be recognized only by states that already allow them, and by the federal government. In the next-best situation, the Court decides that all states must recognize same-sex marriages, but these marriages will continue to only be licensed by states that decide individually to do so.

The grand prize for the civil rights side is that the Supreme Court says yes to both of the questions posed for this hearing. This would bring marriage equality to all 50 states, and require every state to license marriages between any two people, regardless of their sex.

The Supreme Court will be hearing arguments in this case tomorrow, April 28, which will give us some indication as to where the judges are leaning, but the verdict won’t be announced until this June.

Depending on the outcome, Obergefell v. Hodges could be a significant influence on the upcoming presidential elections. If marriage equality becomes the law of the land way before the elections, Republican candidates could find themselves backed into a corner. Generally, Republicans try to appeal both to the Evangelical, staunchly conservative, crowd, as well as the more progressive libertarian voters. Typically, this is expressed in the opinion that the states should have the right to decide individually. With the possibility of this new reality looming over the 2016 presidential field, that kind of nuance may soon prove impossible to hold on to.

Mr Perspective