The Future of Same-Sex Marriage May Be up to the Supreme Court

The states have an enormous amount of leeway when it comes to marriage. On occasion, however, a state’s laws regarding marriage may be called into question, requiring a high authority to step in and offer a well-reasoned answer. For example, Virginia outlawed interracial marriages for many years, until someone challenged the law and eventually had it overturned in the landmark decision of Loving v. Virginia.

As coincidence would have it, Virginia has recently become the third state to ask the Supreme Court to weigh in on their gay marriage law. Joining Utah and Oklahoma, and undoubtedly more in the coming weeks, Virginia’s Attorney General is essentially asking the Supreme Court to answer one highly controversial question: do homosexual couples have a fundamental right to marriage?

The Supreme Court is under no obligation to hear any of the cases. Even if they do decide to weigh in, there is no real deadline facing the Court. Notwithstanding, the situation presents a daunting situation; nine unelected justices may ultimately be responsible for ending the most tumultuous debate in decades.

For proponents of gay rights, that may not be such a great thing.

Earlier this year, same-sex marriage made news when a California ballot initiative attempted to define marriage as between a man and a woman. Reviewed by the Supreme Court, the appeal was shot down on jurisdictional grounds. What that means is that the court never really, officially reached the merits of whether same-sex couples can marry, but rather simply said the people challenging it didn’t have a legal leg to stand on.

In another victory for supporters of same-sex marriage came about in 2013, when the same Court held the Defense of Marriage Act (DOMA), which defined marriage as between a man and a woman, is invalid, because the law offered no legitimate purpose that outweighed the discriminatory, damaging effect DOMA had on same-sex couples. The Court reasoned that “by seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”

The initial inclination many may have is that the Court will make the same decision with respect to states. What makes this time different?

Unlike DOMA, which is a piece of congressional legislation, these laws are all unique to their respective state. As such, they are written differently, and may have provisions that could potentially satisfy the Court’s requirement for a legitimate purpose. Remember, DOMA was deemed to have no legitimate purpose, and, similar to bans on interracial marriage or same-sex marriage at a federal level, there also may not be any legitimate purpose of any of these states laws. However, and regardless of anyone’s personal beliefs, the devil is in the details with respect to statutory construction. With so many different state laws the Supreme Court will have to choose form, it’s possible they may make a ruling based on the best written – or most poorly written – law that appears before them.

Which leads to the next issue: variety. With the copious amount of appeals reaching the Supreme Court’s door, the justices will have the option of picking one (or potentially several) cases on which to base their ruling. While variety may be a good thing, as it ultimately gives the justices more freedom to pick the best case to support their legal reasoning, it’s also not such a great thing for that exact reason – if the Supreme Court wishes to limit the impact of the decision, they can. If they want the decision to have the broadest impact as possible, they can do that too.

So, for example, the Supreme Court may only decide on Virginia’s case based on the unique challenges Virginia is facing, and decline to hear the other cases. In doing so, they could indirectly have an impact on every same-sex couple, without actually ever having to reach a final decision on the merits.

Finally, justices are not keen on recognizing new rights. They may not necessarily have to with respect to gay marriage if they simply do not find a legitimate purpose in any of the state’s laws. What that does, however, is perpetuate and stretch out the same-sex marriage battle, making each challenge and each appeal it’s own little constitutional rule instead of one, overarching definitive rule. That will result in a patchwork of ideology, legal reasoning, and doctrinal law, and ultimately confuse the issue even further.

It is entirely possible none of this may happen. The court may decline to hear any case until there is more of split between circuits, and they may make another victory or offer a crushing defeat for same-sex marriages. As more states appeal, one thing becomes clear: they’ll have to do something, and whatever that something may be, it seems to have more potential to further promulgate and muddle same-sex rights than it does to clear things up.