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What the Supreme Court’s Same-Sex Marriage Decision Might Mean for Georgia and Similar States with State Constitutions Banning Same-Sex Marriage


By Dave Oedel

The Supreme Court heard oral arguments this past Tuesday, April 28, 2015, on two interrelated questions involving the federal constitutionality of state-based same-sex marriages bans in states like Georgia. The Court’s decision, expected by late June, is likely to have an impact on Georgia’s law and those of similarly-situated states. But what impact?

A couple of probable swing voters in the case, Chief Justice John Roberts and Associate Justice Anthony Kennedy, early on in the oral argument Tuesday signaled that they were doubtful about using the courts to redefine the definition of marriage itself, something that they suggested has been assumed for millennia.

But that didn’t stop the Chief from posing this hypothetical, apparently based on an amicus brief by two law professors, Andrew Kopelman and Ilya Somin, about one way of articulating the practical effect of the same-sex-marriage bans: “If Sue loves Joe and Tom loves Joe, Sue can marry Joe but Tom cannot.” Roberts asked why that is not a “straightforward case of sex discrimination.”

People are especially sensitive to Roberts’ creative noodling about such matters because his re-conceptualization of Obamacare’s penalty as a tax, contradicting President Obama’s earlier protestations about the penalty not being a tax, rescued Obamacare in the case of NFIB v. Sebelius. Roberts is not a shy constitutional thinker and doer.

There are at least three different approaches to answering the claims that the same-sex marriage bans in states like Georgia are unconstitutional.

First, you can think about the bans as equal protection violations against people based on their sexual orientation, as the primary proponents of same-sex marriage have been thinking. That’s a position the Obama administration has agreed to support in its briefing, and is the position favored by most LGBT advocates.

Second, you can think about the bans as violations of a fundamental right for any person to choose to marry whomever the person might select in mutual conjunction with the other person. That’s a position taken by many proponents of same-sex marriage, but it’s a little too outré on the libertarianism vector for the administration. Obama’s solicitor general Donald B. Verrilli, Jr. has declined to endorse that perspective in the briefing and oral argument in the pending case, though some justices at oral argument signaled willingness to accept that rationale anyway.

Third, you can think about the bans as Professors Somin and Kopelman have done, a way of thinking that Chief Justice Roberts has now revealed that he finds worth considering: you can think about the bans as simple gender discrimination against people seeking to get married.

The legal elegance of the third option has several dimensions.

First, the Court would not have to elevate constitutional protection for sexual orientation over the rights of the states and their citizens to adhere to an age-old institution classically under the control of states and their citizens. Respect for alternative sexual orientations is definitely growing fast, but a rushed collision with ancient meanings could be counter-productive even from the perspective of the most ardent advocates for change, as we can intuit from the Roe v. Wade experience on abortion.

Second, the Court would not have to devalue protection for religious objections by citizens within the states in comparison with federal judicial strong-arming to advance what some will see as an official religious posture out of step with some citizens’ sincerely-held views about the meaning of marriage. We’ve seen in the wedding-cake-baking, pizza-making, Hobby Lobby and state-RFRA debates that these issues, though seemingly modest in terms of practical import, still reveal powerful undercurrents into which the Court should be cautious before diving.

Third, it would highlight a simple, familiar rationale about gender discrimination that would yet permit the states some leeway in response. If a protected class like African Americans or a fundamental right like “marriage” is being infringed, as was the case in the 1967 interracial marriage case of Loving v. Virginia, the states must articulate a compelling interest and no practical alternative before being allowed to infringe.

Gender is a little different, though, with public opinion and constitutional law alike accepting slightly less-well-articulated rationales for permitting the states to do things like maintain gender-conscious bathrooms, sponsor gender-conscious sporting events, and have gender-conscious rules in areas like insurance, healthcare and privacy.

It’s always dangerous to over-predict on the basis of oral argument, but my educated guess is that the swing rationale on the first question will be on the gender axis. For Georgia and similar states, that would mean that they would not be required to give marriage rights to those with non-traditional sexual orientations, but would be required to say why they want to deny people of any particular (or ambiguous) gender the basic access to meaningful governmental benefits of marriage.

If so, Georgia would have to decide whether to grant marriage rights wholesale to people of same-sex orientations, or institute a legal domain of civil union that would require practical equivalence between same-sex partners, ambiguous-sex and opposite-sex partners. In states choosing civil union, the same-sex marriage community would then be welcome to demonstrate in a later case or cases why the proffered equivalence is not in fact equivalent.

In short, my prediction is that the same-sex marriage decision that will emerge from the Supreme Court in June, 2015 will not ultimately decide the question of same-sex marriage. Instead, I suspect that the decision will push the question back to the states, their citizens, and the Obama administration for more searching scrutiny among themselves of just how we all should come to terms with the legitimate claims of advocates for equality, alongside the legitimate claims of others who don’t want government messing unnecessarily with their values, religion, states and independence. It could mean a lesser, more bureaucratic role for government in marriage, or it could mean a general ceding to government of moral aspects in a morphed meaning of marriage.  And it would take the Court back from the brink of deciding the question itself.

Check back after the decision for more coverage in the Macon Monitor. One thing for sure is that the decision itself will have some effect on personal pairings, and governmental interactions with those couples, in Middle Georgia.


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