Tuesday, April 28, 2015

As SCOTUS Considers Marriage Equality, A Look At The High-Stakes

The dark green indicates states where marriage equality is permitted via federal court rulings.
Should we lose at SCOTUS, these could be thrown into disarray.

I'm cautiously hopeful today as oral arguments take place at the U.S. Supreme Court over marriage equality.

Most observers, even haters, have a measured expectation that SCOTUS will rule in favor of same-sex marriage. Mainly because they seemed to have indicated a leaning in our favor by allowing states to permit same-sex marriage last fall while the appeals were flying fast and furious.

Surely the court wouldn't allow tens of thousands of marriages to take place if they didn't think they would rule in favor? The results of ruling against same-sex marriage now would be a mess of catastrophic proportions.

The Washington Post today imagines the worst case scenario should we - horrors! - not prevail.

“It would be a mess,” said Dale Carpenter, a professor of constitutional law at the University of Minnesota, noting that marriage confers 1,100 rights and benefits at the federal level and hundreds more from the states, from filing taxes jointly to inheriting hunting licenses. “There would be great uncertainty in the aftermath of such a ruling. All kinds of possibilities we can’t even think of would arise.”

The effect would be explosive in the 21 states where same-sex-marriage bans were struck down by federal courts. Groups for and against these unions say such a decision would set off a cascade of fresh litigation and spark dramatic new fights in state capitals, with each side jockeying to have its version of marriage enshrined in state law.

Some legal experts say the old laws in those states would snap back into place, immediately shutting the door on future marriages, while others contend that would require another round of litigation. Some believe the thousands of marriages that have taken place in those states would be deemed valid, though others think the matter would need to be settled by the courts — perhaps even the Supreme Court.

In states such as Oregon, where the political climate has become more favorable to gay marriage in recent years, there probably would be a scramble to enact legislation to allow same-sex marriages.

But the process could be more drawn out in places such as California, whose prohibition on same-sex marriage was part of the state constitution. If that ban was reinstated as a result of a Supreme Court decision, a voter referendum would be needed to get rid of it.

Elsewhere, the battles could be more pitched. In Virginia and Pennsylvania, for instance, freshly minted Democratic governors may resist attempts to revert to old laws, potentially clashing with conservative state lawmakers. 

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