When the 11th U.S. Circuit Court of Appeals overturned Florida’s same-sex marriage ban on Jan. 5, Florida became the 36th state in the nation to recognize marriage equality. The 11th Circuit’s move did not come as a surprise, given that federal courts have been striking down same-sex marriage at a breakneck pace in recent months.
Yet, although the lower courts have consistently decided in favor of marriage equality, the Supreme Court has carefully avoided granting certiorari — an order from a higher court to a lower court that mandates submission of a case for review — to cases that would force it to make a definitive ruling regarding the legality of same-sex marriage. Last term, the Supreme Court refused to rule on appeals from five states where federal appellate courts had overturned bans.
Its choice to decline taking on same-sex marriage cases resulted in public outcry from advocates who argued that the issue would be best served by a ruling from the nine justices.
On Jan. 16, the Supreme Court answered the call of its critics, announcing that it would issue a decision on a consolidated set of cases from Michigan, Ohio, Kentucky and Tennessee. Instead of considering each case individually, it will hear arguments for two specific questions that each case raises: first, “[does] the Fourteenth Amendment require a state to license a marriage between two people of the same sex,” and second, “[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?”
Jacob Winkelman is an intern for ASUA Pride Alliance under LGBTQ Affairs.
“It’s about time,” Winkelman said. “I’m happy that we can finally settle this issue and move on to dealing with the many other inequalities still present in our country. It would be nice to see all nine justices stand up for equality, instead of a 5-4 decision.”
I, too, believe that same-sex marriage should ultimately be legalized via a Supreme Court decision.
Last October, however, I wrote an article claiming that lesbian, gay, bisexual and transgender advocates should be pleased that the Supreme Court opted not to rule on same-sex marriage. I argued that our current justices, who issued a series of knuckleheaded rulings last term, could not be trusted with an issue as important as marriage equality. Why should we expect equality from a court that destroyed the Voting Rights Act?
Moreover, I noted that the longer the Supreme Court avoids same-sex marriage, the more opportunities there will be for gay and lesbian couples to marry under state law. As the number of legally married same-sex couples increases, it will become more difficult for SCOTUS to “undo” their marriages. There is cause, therefore, to believe that same-sex marriage would benefit from inaction by the Supreme Court.
For these reasons, I suggested that same-sex marriage should be left to the states until the social climate in the U.S. forces the justices to rule in favor of marriage equality.
Now that the Supreme Court has announced its intention to issue a decision, I have no choice but to count myself among the thousands of marriage-equality supporters keeping our fingers crossed for a decision that grants all U.S. citizens the freedom to marry.
Unfortunately, the way the Supreme Court has consolidated the cases in question does not necessarily entail a favorable ruling. As many experts have noted, the questions in the writ of certiorari make it possible for the Supreme Court to rule that the 14th Amendment requires states to recognize same-sex marriage licenses from other states — but not to issue same-sex marriage licenses. Such a ruling would constitute a crippling blow to LGBTQ rights.
It’s scary imagining that the breakneck progress of the past decade could be undone overnight by a handful of old men in the nation’s highest court.
All we can do is hope, and I hope that the justices have lived in the 21st century long enough to realize that denying marriage to same-sex couples constitutes blatant, unconscionable discrimination.
_______________
Elizabeth Hannah is biochemistry sophomore. Follow her on Twitter.
