A recent email from the Human Rights Campaign surprised me with a more-than-confident message on the upcoming oral arguments for marriage equality. “Now that the fight for marriage equality is over,” the title read. HRC and other leading national gay organizations are heralding this “historic decision” before any judgment from the Supreme Court is handed down. Those who are convinced of sweeping positive outcomes from the high court in June are missing crucial pieces to the marriage puzzle.
The 2013 overrule of a DOMA section, which banned same-sex couples from federal marriage benefits, is said to be proof of the favorable action justices will take. While liberal, the 2013 decision is far from a federal mandate requiring states to preform same-sex marriages.
The ruling on cases beginning oral arguments this Tuesday will determine the constitutionality of bans on same-sex marriage. Lawyers for same-sex couples argue these bans violate the fourteenth amendment’s “equal protection of the laws.”
In a Business Insider article earlier this week, ULCA law professor Adam Winkler explained, “I think many people in the LGBT rights community have taken for granted that they would win this case.”
He continued, “I think one thing that may surprise is a compromise in this case rather than complete victory for same-sex couples."
The article highlights two central questions the Supreme Court must answer to reach a decision in June. The first asks whether or not states are required to issue marriage licenses to gay couples under the Fourteenth Amendment. The other explores the requirement for states to recognize same-sex marriages performed in outside jurisdictions.
While a “yes” answer is expected for the second, a “no” to the first would not be surprising. Legal experts like Winkler think this is what may happen. This type of decision would appeal to state’s rights advocates, serving as a “middle ground” for marriage equality. This decision would not force states to conduct same-sex marriages, but safeguard federal benefits for gay couples married in states where it is permitted.
This article appears in the May issue of GayDayton. Available May first.