After keeping observers guessing for a long time as to whether they will take on the issue of same-sex marriage during this term, the US Supreme Court in a notice yesterday finally decided to do so. There were many cases that had been appealed to them and what I found interesting was that they accepted for review the four cases that the Sixth Circuit Court of Appeals decided. This was the only Appeals Court circuit that back in November upheld bans on same-sex marriage and I strongly criticized its weird reasoning.

What makes this interesting is that the justices have asked the lawyers representing the two sides to limit their arguments to just two questions regarding the power of the states. One question is whether states can ban same-sex marriages at all and the other is whether they can refuse to recognize marriages performed by a different state that recognizes it. They have allocated two and a half hours for oral arguments, much more time than the usual one hour. While not yet scheduled, hearings are likely to be held in late April with the verdict delivered at or near the end of its term in June.

Lyle Denniston discusses what the four cases were about.

The focus of the Court’s review will be a decision issued in early November by the U.S. Court of Appeals for the Sixth Circuit. That decision, breaking ranks with most other courts, upheld bans on marriage or marriage-recognition in Kentucky, Michigan, Ohio, and Tennessee.

Friday’s order granted review of one petition from each of those states; the petitions phrase the two basic issues in somewhat different ways, which is why the Court rewrote them to make specifically clear what it intended to review.

The Kentucky case (Bourke v. Beshear) raises both of the issues that the Court will be deciding, the Michigan case (DeBoer v. Snyder) deals only with marriage, and the Ohio (Obergefell v. Hodges) and Tennessee cases (Tanco v. Haslam) deal only with the recognition question. If customary practice is followed, the first case listed in the order — the Ohio case Obergefell v. Hodges — will become the historic title for the final ruling.

I thought it interesting that they will not take up the fundamental issue of whether same-sex marriages are legal at all, i.e., they did not ask for arguments on the question of whether states can allow same sex marriages but only whether they can ban them. What that says to me is that they have accepted the premise that same-sex marriage is permissible under the law and what they are concerned about are the permissible means of arriving at it. This was the central point of the majority 2-1 opinion of the Sixth Circuit, that it was not the role of the courts to decide this issue but the people through its normal processes of operation.

So the principle of the legality of same-sex marriage has been tacitly affirmed by the Supreme Court (assuming that my assumption is correct and that they do not later take up another case that challenges this very principle) and must be considered a huge step forward. Once that sinks in, it is likely to make opponents of same-sex marriage extremely unhappy because they must realize that the popular tide is rapidly turning against them on this issue and their only hope was that the court would ban such marriages on the basis of ‘natural law’ or some reasoning.

So it looks to me like those marriages that have been permitted in states through the legislative process are safe from being overturned and those same-sex couples can breathe easy. But what about those in other states?

As to the first of the two questions under review, if the court rules that states cannot ban such marriages, then the game is again over and same-sex marriage becomes the law of the land and we have the equivalent of the famous Loving v. Virginia case in 1967 that struck down that state’s ban on inter-racial marriage. If they affirm the right of states to ban such marriages, then those states that had such bans overturned by the courts and where people have already got married will have to try and untangle the mess and decide whether such marriages are void or grant them special status that permits them to continue being married while forbidding future ones. Same-sex advocates in those states will have to go through the tedious process of passing laws or referenda that allow it. They will win eventually but it will take time.

The second question is also interesting. If the Supreme Court says that states can refuse to recognize marriages legally performed by a different state, then we would have the odd situation where they ruled earlier in the landmark 2013 United States v. Windsor DOMA case that the federal government could not deny benefits to same-sex couples whose marriages took place in states that allow it, but other states can deny such benefits.

If they say that states must recognize marriages legally performed in other states (as is the case now for opposite-sex marriages), then the game is again effectively over because couples will simply go to those states to get married and return, which was what the Loving couple did and led to them being prosecuted for trying to circumvent the state law banning their marriage.

In a brief but strong statement Attorney General Eric Holder said that his office will file a brief supporting same-sex marriage.

“The Supreme Court has announced that it will soon hear several cases raising core questions concerning the constitutionality of same-sex marriages. As these cases proceed, the Department of Justice will remain committed to ensuring that the benefits of marriage are available as broadly as possible. And we will keep striving to secure equal treatment for all members of society—regardless of sexual orientation.

“As such, we expect to file a ‘friend of the court’ brief in these cases that will urge the Supreme Court to make marriage equality a reality for all Americans. It is time for our nation to take another critical step forward to ensure the fundamental equality of all Americans—no matter who they are, where they come from, or whom they love.”

I think that the Supreme Court will come down in favor of same-sex marriage, though as is often the case with this court, they may try to hedge their reasoning and complicate things, unlike the unanimous verdict in Loving where the court was unequivocal in striking down that ban.