Finally before the court

The Supremes have announced they will take the marriage equality case from Michigan and combine it with the other 6th Circuit cases from Ohio, Kentucky, and Tennessee. The court has focused the cases down to two questions, the core of the cases:

1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

That "require" bit implies the opposite – might a state choose to permit same-sex marriages or might it choose to ban those marriages? The two questions mean the Supremes will focus on what matters to all of us and not be derailed by issues of standing, which is why they didn't rule in the California case 18 months ago.

The Supremes have scheduled a generous 90 minutes for oral arguments to Question 1 and an hour for Question 2. It makes sense – they are hearing four cases. Those oral arguments will be heard sometime during the week of April 24, with a ruling by the end of June.

Do we start planning for big parties in July? My sister and her partner would be delighted to do so. The tea-leaf reading to discern how the Supremes will rule has begun. Some, like Ari Ezra Waldman of the blog Towleroad lists his reasons why he believes the court will rule in our favor:

1. The Supremes let stand marriage equality rulings in 3 Circuit courts. Doubtful the court would allow thousands of same-sex couples to marry and, several months later, take it back.

2. The Supremes refused a stay in Florida, even though the 11th Circuit hasn't ruled yet.

3. Through a series of cases Justice Kennedy has championed our rights. He has already destroyed the arguments under the remaining state bans.

Others aren't so sure, including several of Towleroad's readers. Why two questions? Isn't the second covered by the first? Is the court not so sure of the answer to the first question? Or are they just hiding their intentions? Or are they making sure bigoted states, such as Texas, get the point?

Justice Kennedy may be a big champion of gay rights, but he is also a big champion of state's rights. And in this case the two are in opposition. Which will he choose?



In other marriage news...

There is a second Michigan marriage case. This one is to require that the state recognize the 300 couples who married last year in the one-day window between the district court ruling and the circuit court stay. Today a district court judge ruled the state must recognize those marriages, though he added a 21 day stay. There are now petitions circulating to demand AG Bill Schuette not appeal.



The ban of same-sex marriage in South Dakota was ruled unconstitutional. The decision looks familiar: (1) Marriage is a fundamental right which (2) the Supremes have said many times, and (3) that right had been denied to same-sex couples, (4) for no compelling reason.

Ari Ezra Waldman is disappointed that a stay was issued with the ruling, seemingly automatically. Yeah, that used to be routine. But the refusal by the Supremes to intervene in Florida has changed that reasoning. South Dakota is in the 8th Circuit, and like the 11th Circuit in the Florida case, hasn't heard a marriage equality case.



In most civil cases, such as these marriage equality cases, the losing side must pay the attorney's fees of those that won. So far various states have awarded a combined $800K with another $2.6 million in requests pending. So much for GOP legislatures and governors being fiscally prudent.



I wrote about Cecil Bell, the Texas state legislator who wants to declare that Texas has sovereign immunity when it comes to same-sex marriage and the US constitution. Since that idea isn't getting very far he has another. He wants to revoke salaries of state employees, such as clerks and judges, who issue or recognize same-sex marriage licenses. Strange that Bill Chumley of South Carolina has a matching bill for his state.