The U.S. Supreme Court on Friday agreed to decide whether the 50 states must recognize same-sex marriage, choosing two Kentucky cases among the six that could make history by the end of the court's term in June.
"We appreciate the opportunity to present the stories of our clients," said Dan Canon, a Louisville lawyer for eight Kentucky couples who are suing Gov. Steve Beshear over the state's gay marriage ban. "Some of these people have been in loving and committed relationships for decades. It's long past time that we recognized their fundamental rights."
Beshear likewise issued a statement praising the court for making "the right decision."
"Any further delay in the court's consideration of these cases would prolong the instability and uncertainty which states and families currently endure," Beshear said. "Kentuckians — and, indeed, all Americans — deserve clarity and finality on this matter, and the assurance that the law will be consistent across state lines."
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The high court ducked the marriage controversy in October, allowing dozens of lower court decisions to stand in favor of same-sex couples seeking marital recognition. Partly as a result, 36 states that hold about three-fourths of the U.S. population now allow gay marriage.
But the U.S. 6th Circuit Court of Appeals in Cincinnati went the other way in November. By a 2-to-1 majority, the court ruled that state voters at the ballot box, not courts, should establish marriage rights. The 6th Circuit sided with state officials in Kentucky, Tennessee, Ohio and Michigan who defended gay marriage bans against six lawsuits. Most of those parties promptly appealed, including Beshear and the Kentucky couples.
Faced with a "patchwork quilt" scenario, the Supreme Court was compelled to weigh in by taking the 6th Circuit appeals, said Samuel Marcosson, a University of Louisville constitutional law professor. The court can't permit Americans to have basic, inalienable rights in New York and Florida but not in Kentucky and Ohio, Marcosson said.
"If I were a betting man — and I'm not — but if I were, I'd be comfortable putting my money down on the side of the plaintiffs asking for marriage equality," Marcosson said.
"The fact that the Supreme Court let these other rulings go into effect and it let marriage equality be recognized in 36 states says a lot," he said. "Once you've done that with civil rights, it's very hard to come in later and try to roll it back. Thousands of couples have gotten married in these states. If the Supreme Court were to affirm the 6th Circuit now, it would create a real mess."
In a one-paragraph order on Friday, the Supreme Court said it will consolidate the 6th Circuit cases to consider two constitutional questions: Does the 14th Amendment require a state to issue a marriage license to two men or two women? And does it require a state to recognize a same-sex marriage that was lawfully performed in another state where such marriages are legal?
The court instructed lawyers in the cases to submit a series of written briefs over the next three months. No oral arguments were scheduled Friday, but the court said it will hear 90 minutes of arguments on the first question and 60 minutes on the second.
This isn't a dry academic debate for the plaintiffs in Kentucky's cases, who say they don't enjoy the same rights as heterosexual couples in benefits as varied as parenthood, tax breaks, health insurance coverage, property ownership and inheritance.
"Since only one of us can currently be the legal parent of our children, each of us has legally adopted different children, and we have to constantly be aware of which child legally belongs to which parent. It's necessary because only the legal parent can provide consent for medical treatment or even make medical decisions," said plaintiff Randy Johnson of Louisville, who married Paul Campion in California in 2008. "So Paul and I are both very excited about the opportunity to have the court hear our case."
The nine justices on the Supreme Court have not yet taken a stand on state-level gay marriage bans. But they came close in 2013. In U.S. v. Windsor, a 5-to-4 majority ruled that the federal Defense of Marriage Act, prohibiting recognition of gay marriage, improperly interfered with the state of New York's established right to authorize such marriages.
Then, having settled a relatively simple federalism conflict, the court went further to sharply criticize gay marriage bans as needlessly "humiliating" for many families.
"The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the states," Justice Anthony Kennedy wrote for the majority.
The five justices who struck down the Defense of Marriage Act are likely to take a dim view of Kentucky's gay marriage ban, Marcosson said.
"The language is very strong in Windsor, that government may not demean these families, it may not deny them the dignity of equal treatment under the law," Marcosson said. "I've thought all along that if and when the court took up this issue after Windsor, it was quite likely to rule that the states, just like the federal government, have to recognize the marriages of gay and lesbian individuals just as they do traditional marriages."
But gay marriage advocates miss the point of the Windsor decision, said Kent Ostrander of the Family Foundation of Kentucky, which has backed the state's marriage ban in court.
The Supreme Court defended the right of a state — in this case, New York — to define marriage on its own terms, which is proper because marriage long has been recognized as a state issue, Ostrander said. If Kennedy and the other justices now declare that Kentucky doesn't have the same right as New York, they will contradict themselves, he said.
Ostrander said he's prepared to "live with" a decision striking down Kentucky's marriage ban, if that happens.
"There was a time in 1857 when the Supreme Court ruled that black people were only three-fifths of a human being," Ostrander said. "History went on. Fortunately, somewhere down the road, that decision was rectified. I would hope that the realization that every child needs a mother and a father would prevail in the end regardless of what the court does."
Kentucky's court battle over marriage is more than a year old.
U.S. District Judge John G. Heyburn II of Louisville handed down two decisions last year ruling that Kentucky's definition of marriage — limiting it to one man and one woman — unreasonably discriminates against gays and lesbians and their children, and therefore is unconstitutional. But Heyburn put his decisions in Bourke v. Beshear and Love v. Beshear on hold pending appeal.
Beshear hired a private law firm to appeal, saying he wanted a higher court to "bring finality and certainty to this matter," after Attorney General Jack Conway quit the case. Months later, the 6th Circuit became the first federal appellate court in the country to rule against same-sex couples following a string of several dozen decisions favoring them.
In their appeal to the Supreme Court late last year, attorneys for Kentucky's same-sex couples made sure to liberally reference and quote from the court's Windsor decision.
"Kentucky's marriage prohibition marks same-sex relationships and the families they create as less valuable and less worthy of respect than opposite-sex relationships, thus 'impos(ing) a disadvantage, a separate status, and so a stigma' on gay and lesbian Kentuckians that is incompatible with the bedrock constitutional principles animating the Fourteenth Amendment," the couples' attorneys wrote.
In his appeal, Beshear said he is duty-bound to defend Kentucky's ban, but "these cases are excellent vehicles" to resolve the national marriage debate.
"The controversy and extensive litigation continues," Beshear's attorneys wrote. "The proceedings throughout the country have created a patchwork of inconsistent decisions resulting in uncertainty and confusion. The court can provide finality to the legal questions presented in this petition, guidance to the voters and their legislators, and end the legal chaos affecting Kentuckians and all citizens."