Recent events in several states, including Kentucky, Texas and Utah, seem to indicate another same-sex marriage decision is heading toward the Supreme Court.
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.
Beshear asked for a stay in the case until it could be considered with other similar cases.
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.
In Ohio, a federal district judge ruled that the state must recognize same-sex marriages from other states. In Texas, a federal judge said that the state’s ban on same-sex marriages “conflicts with the United States Constitution’s guarantees of equal protection and due process.”
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.
U.S. District Judge Orlando Garcia quoted Scalia’s Lawrence dissent in detail.
“[W]hat justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution’? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry,” Scalia wrote in 2003, in his criticism of the Court’s majority decision.
“What justification could there possibly be for denying the benefits of marriage to homosexual couples?” Scalia pondered in 2003.
In this dissent in the Defense of Marriage Act case in 2013, Windsor v. United States, Scalia posed the same theoretical questions about the majority opinion.
“As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by ‘ “bare . . . desire to harm” ’couples in same-sex marriages. … How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status,” Scalia said.
But in the majority opinion, Justice Anthony Kennedy made it clear the Court wasn’t considering the constitutional right of the states to ignore same-sex marriages legal in other states.
“DOMA contains two operative sections: Section 2, which has not been challenged here, allows States to refuse to recognize same-sex marriages performed under the laws of other States,” Kennedy said. The Court also declined to say whether there was a constitutional right to same-sex marriages.
Justice Scalia didn’t buy that argument.
“It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here,” Scalia said. “The only thing that will ‘confine’ the Court’s holding is its sense of what it can get away with.”
For now, the current cases are heading to federal appeals courts, where a split among the judges could hasten the issue’s arrival at the Supreme Court during its next term.
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