By Marcia Coyle, The National Law Journal
Couples challenging same-sex marriage bans in four states on Friday triggered the next round in the U.S. Supreme Court in the landmark legal battle over marriage equality.
The couples, represented by civil rights organizations and private lawyers, filed their so-called “briefs on the merits” addressing the questions that the justices agreed to decide when they granted review on Jan. 16.
“We argue that when couples cannot marry, their families, including their children, are denied a fundamental freedom as well as the status, dignity, security, stability and legal protections that marriage confers,” said Carole Stanyar of Ann Arbor, Michigan, counsel of record in DeBoer v. Snyder. “These laws have serious, persistent, wide-ranging injuries to children. It’s time to bring that injustice to an end.”
Same sex couples can now marry in 37 states and the District of Columbia.
The four cases before the high court involve state bans on same-sex marriage and on the recognition of those marriages performed out of state. The cases are from Michigan (DeBoer v. Snyder); Ohio (Obergefell v. Hodges); Kentucky (Bourke v. Beshear), and Tennessee (Tanco v. Haslam).
In November, gay and lesbian couples in those cases lost their challenges before a divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit. The appellate court became the first to uphold state marriage bans. Four other circuit courts—the Fourth, Seventh, Ninth and Tenth—previously had found the bans unconstitutional.
The high court, which is expected to hear arguments in the cases from the Sixth Circuit in the final week of April, directed the parties to address two questions: Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? And, 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?
In the Michigan case, which addresses the first question, Stanyar represents two nurses, April DeBoer and Jayne Rowse, and their three children. She urges the justices to apply a tougher level of scrutiny to the marriage ban “because discrimination on the basis of sexual orientation meets all of the applicable criteria for this level of review.”
That heightened scrutiny, she adds, should also apply “because the bans’ burden and disparate impact on children with only one legally recognized parent are every bit as onerous as those of the illegitimacy classifications invalidated by this court decades ago.”
In the Tennessee case, a challenge to the state’s nonrecognition law, three married couples moved to that state for career purposes.
“The court of appeals’ holding not only denies recognition and dignity to petitioners’ marriages and families, but also establishes a checkerboard nation in which same-sex couples’ marriages are dissolved and re-established as they travel or move from state to state,” writes their high court counsel, Douglas Hallward-Driemeier of Ropes & Gray. “That is the antithesis of the stability that marriage is supposed to afford.”
The briefs convey many principles that have long been a part of same-sex marriage advocacy, according to Susan Sommer, director of constitutional litigation for Lambda Legal.
“That should come as no surprise,” she said. “They also reflect a distillation of what the [Supreme] Court has said in a series of landmark decisions, most recently [United States v.] Windsor.” The high court in Windsor struck down the traditional definition of marriage in the federal Defense of Marriage Act.
The Ohio brief, Sommer said, also encourages the justices to state explicitly that there is no presumption of constitutionality when government bodies target gay and lesbian individuals and families for disadvantages, as some have been doing recently.
The justices have allotted 90 minutes for argument on whether states must license same sex marriages and one hour on the recognition question. State officials defending their state bans will file their merits briefs on or before 2 p.m., March 27. The challengers get to reply to those briefs on or before 2 p.m., April 17.
The justices have asked the lawyers to let them know by March 17 who will argue for the same-sex couples during the April arguments.
“We have not determined yet who will argue,” said Alphonse Gerhardstein of Cincinnati’s Gerhardstein & Branch, counsel in the Ohio case, during a news briefing with the other cases’ lawyers. “We have focused on getting the briefs filed. We expect the solicitor general will come in to assist on our side. We expect one lawyer on marriage and one on recognition. It’s doubtful we will seek more than one. We just need to work through that issue.”
And not exactly an easy matter to resolve. “Certainly, a lot of us want to argue,” said Michigan’s Stanyar. “It’s an exciting case.”
Lawyers for the same-sex couples in the four cases expressed hope Friday that they were in the “homestretch.”
“This is the right time. We’ve got the right clients. We’ve got the right briefs. We’ve got the right court,” said Dan Canon of Clay Daniel Walton Adams in Louisville, Kentucky, one of the lawyers in the challenge to Kentucky’s marriage bans.
IMAGE: Jayne Rowse, back-standing, and partner April DeBoer, center-seated, with their family. Courtesy photo
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