Jim Porter: Same-sex marriage ban going to Supreme Court
November 26, 2014
Three weeks ago I drafted a Law Review analyzing a new Idaho case that I was prepared to write would put the nail in the coffin for states attempting to ban same-sex marriages.
Alas, on the way to the printer, the law changed.
SAME-SEX BANS OVERTURNED
In June 2013 the United States Supreme Court decided two high profile marriage equality cases, United States v. Windsor and Hollingsworth v. Perry.
In Windsor the Supreme Court ruled 5-4 that the Defense of Marriage Act, which recognizes only opposite-sex marriages, was unconstitutional.
Justice Kennedy, the "swing vote," wrote that the Act violated the law because it "demeaned those persons who are in a lawful same-sex marriage … and imposed a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawfully by the unquestioned authority of the States." The Court came down against states prohibiting same-sex marriages.
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After Windsor and Perry a whole series of cases involving same-sex marriage bans were headed to the U.S. Supreme Court on appeal. Interestingly, the Court refused to hear those appeals. Everyone concluded the Supreme Court had banned laws prohibiting same-sex marriages.
IDAHO CASE/NAIL IN COFFIN
Consistent with that view, in October of this year, the federal Ninth Circuit Court of Appeals in Latta v. Otter ruled that a same-sex marriage ban was illegal in Idaho because the U.S. Supreme Court had denied certiorari (review) of several same-sex cases.
The Ninth Circuit wrote: "We repeat: by denying certiorari on October 6, 2014, the Supreme Court has allowed marriages to proceed in fourteen states across the nation; all circuit courts of appeals to consider same-sex marriage bans have invalidated those prohibitions as unconstitutional; and this court has held that same-sex marriage bans deprive gays and lesbians of their constitutional rights thus also supports dissolution of the stay of the district court's order."
Issue decided. States may not ban same-sex marriages.
DEBOER V. SNYDER
Then earlier this month along came DeBoer v. Snyder where the Sixth Circuit upheld state laws prohibiting same-sex marriages.
That, of course, sets up a split of the federal circuit courts, which can only be resolved by the Supreme Court.
A pro-marriage equality decision could legalize same-sex marriages nationwide and an anti-marriage equality ruling could bring same-sex marriage bans back in dozens of states.
If the Supreme Court acts quickly, the matter could be decided by mid 2015, if not, there will likely not be a decision until 2016.
Based on the articles and cases I've read, I'm betting the Supreme Court will legalize same-sex marriages and ban state laws that prohibit them. I hope I am right.
We shall soon see.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee, Tahoe City and Reno. Jim's practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, mediation and other transactional matters. He may be reached at firstname.lastname@example.org or http://www.portersimon.com.