Podcast: Is same-sex marriage heading back to the Supreme Court?

Is same-sex marriage heading back to the Supreme Court in the near future? Two leading experts on different sides of the issue explain why this seems likely, what recent court decisions are accelerating the process, and what the Court might re-evaluate from its DOMA decision.

Bruce Ackerman from Yale Law and John C. Eastman from Chapman University School of Law joined the National Constitution Center’s Jeffrey Rosen for a podcast discussion about recent same-sex marriage decisions in the lower courts, and the prospect for another historic Supreme Court case in the court’s next term.

Photo by Flickr user Fibonacci Blue

Photo by Flickr user Fibonacci Blue

Events in several states, including Kentucky, Texas and Utah, seem to indicate another same-sex marriage decision is heading toward the Supreme Court.

“I do expect they’ll hear it in the next year or two,” said Eastman. He said two recent opinions are on an accelerated briefing schedule and the case (or cases) could be accepted by the Court as early as this fall.

On Tuesday, Kentucky Governor Steve Beshear, a Democrat, said that he would hire other counsel to represent his state, after Kentucky Attorney General Jack Conway, another Democrat, refused to defend the state’s ban on gay marriages in court.

“From a legal standpoint I draw the line at discrimination,” Conway told Time magazine in an interview.

In a statement, Governor Beshear said he wanted the issues in the case settled once and for all, including whether Kentucky has to recognize same-sex marriages that are legal in other states, and if states have the right to pass their own laws barring same-sex marriages.

“Both of these issues, as well as similar issues being litigated in other parts of the country, will be and should be ultimately decided by the U.S. Supreme Court in order to bring finality and certainty to this matter. The people of this country need to know what the rules will be going forward.  Kentucky should be a part of this process,” Beshear said.

As of today, decisions have been made in six states by federal judges striking down same-sex marriage bans. Those decisions are on hold, but they’ve created complications already.  In Utah, for example, same-same marriages were allowed for a brief time period until the Supreme Court issued a stay. The federal government will recognize about 1,000 such unions in Utah for federal benefits purposes, but the state won’t, until the Supreme Court issues a ruling.

The decisions raise an argument about the existence of a constitutional reason for a state to deny same-sex couples an equal right to marry.

Five of the district judges also cited comments from Justice Antonin Scalia in prior Supreme Court decisions, including the landmark Lawrence v. Texas decision from 2003.

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