The U.S. Supreme Court’s announcement that it will take up same-sex marriage this term has many people searching for clues to how the court’s justices may rule.
The high court will decide whether same-sex couples have a right to marry under the constitution. Specifically, the court will hear cases that ask it to overturn bans in four states. The cases will be argued in April; a decision is expected in June.
“Some people have seen some hints in the very careful way that the court framed the questions it would address,” Washington University law professor Susan Appleton told “St. Louis on the Air” host Don Marsh on Wednesday. “It doesn’t talk about a right to marriage, or even discrimination per se, but rather the court said it would answer two questions: Does the 14th Amendment require a state to license a marriage between two people of the same sex? And then does the 14th Amendment require a state to recognize a marriage between two people of the same sex that was lawfully licensed and celebrated out of state?”
The 14th Amendment guarantees equal protection under the law.
In 2013, the court declined to address same-sex marriage while striking down part of a federal anti-gay marriage law. Now, 36 states allow same-sex marriage, in large part because of the high court’s 2013 ruling.
“It was able to avoid the issue when U.S. Courts of Appeals were uniformly all ruling the same way, striking down restrictions on same-sex marriage or recognition of marriages in other states,” Appleton said. “The U.S. Court of Appeals for the 6th Circuit recently ruled the other way in a 2-1 opinion, upholding in a set of four different cases restrictions on marriage or on marriage recognition for same-sex couples.”
“I think it comes down, very possibly, as many of these things do, to Justice (Anthony) Kennedy,” said William “Bill” Freivogel, a professor at Southern Illinois University–Carbondale’s Paul Simon Public Policy Institute. Freivogel said Kennedy made two points in striking down the Defense of Marriage Act two years ago: “One, that the states have traditionally been able to decide who gets married — sort of a state’s rights approach, a dual federalism approach. On the other hand, also an individual liberty approach that states shouldn’t be able to discriminate against people based upon their lifestyle.”
Kennedy wrote the majority opinion in the court’s 2013 decision in United States v. Windsor. The court found that restricting marriage to heterosexual couples was unconstitutional under the due process clause of the Fifth Amendment. “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the state, by its marriage laws, south to protect in personhood and dignity,” Kennedy wrote.
The Supreme Court has skirted the issue of same-sex marriage for some time, and it’s possible it will again avoid a definitive ruling on par with 1967’s Loving v. Virginia, a landmark civil rights case that ruled laws prohibiting interracial marriage were unconstitutional.
“They could try to split the thing again by saying states have to recognize same-sex marriages performed in other states, but they don’t have to permit them to be performed in their own state,” Freivogel said. “It sure would be a real undoing of a new reality if the court were to stop short of saying that states have to permit same-sex marriages.”
In states that do not recognize same-sex marriage, couples are traveling to states that do to get married, which already is the source of lawsuits.
“Say Missouri doesn’t allow it so I have to go to Illinois, I get married there and then I want to get divorced seven years later,” said Mark Smith, associate vice chancellor of students at Washington University. “Well, Missouri wouldn’t do it ’cause they didn’t do the marriage. Then some of these states require like a year of residency before you grant a divorce. This middle ground would not be a good solution.”
In October, a Jackson County, Mo., circuit court judge ruled that the state had to recognize same-sex marriages performed in other states, ruling that failing to do so violated the 14th Amendment.
In 2004, voters overwhelmingly approved a Missouri Constitutional amendment that banned same-sex marriage, stating “That to be valid and recognized in this state, a marriage shall exist only between a man and a woman.”
But in November, judges in St. Louis and Kansas City struck down the state’s ban.
A St. Louis circuit court judge ruled that the ban violates the U.S. Constitution. St. Louis and St. Louis County began issuing marriage licenses.
Two days later, a federal judge in Kansas City followed suit, but stayed his ruling pending an appeal from the attorney general. Jackson County officials began issuing marriage licenses that day, but most the rest of the state has not.
It’s also possible that children could be caught in the middle if states do not have to recognize same-sex marriages, Appleton said.
“We do have a long history of protecting children from being discriminated against in constitutional law for the sins of their parents,” she said. “The Supreme Court got rid of many classifications that punished illegitimate children simply because they were born outside of marriage. It wasn’t the child’s fault.”
Ferguson Grand Jury Investigation
Earlier this month, the NAACP’s Legal Defense and Educational Fund asked a St. Louis County judge to appoint a special prosecutor and convene a new grand jury.
“Basically, what we were seeking was ways in which to restore integrity and fairness in this process,” said Vincent Southerland, senior counsel at the fund.
The organization raised several concerns after reviewing the grand jury transcripts that St. Louis County Prosecutor Bob McCulloch released after he announced the grand jury’s decision to not indict then Ferguson police Officer Darren Wilson in the shooting death of Michael Brown.
“Looking at these transcripts revealed a number of irregularities and concerns about the way in which the proceedings were conducted, from Mr. McCulloch’s admitted presentation of evidence that he knew was false, to instructions to the grand jurors that were riddled with concerning errors. What we really sought was for the presiding judge of the St. Louis County Circuit Court to take a look at these proceedings and investigate them, and if the investigation revealed those types of concerns that we had raised in our letter, to appoint a special prosecutor to take remedial action in this particular case.”
A court administration responded this week, rejecting the request.
“That response really focused on the code of judicial conduct that prohibits a judge from permitting ex parte communications about a pending matter or an impending matter that may come before the court,” Southerland said. “What we did in response to that letter was actually to seek further clarification as to what pending matter or impending matter the court was referencing.”
A grand juror also has filed suit against McCulloch, saying the prosecutor mischaracterized the Wilson case. Grand jurors are prohibited by law from discussing cases they were involved in. But McCulloch’s move to release the grand jury transcripts could be a factor in the case.
“Wouldn’t McCulloch’s professed commitment to transparency in some ways open the door to this? He can’t have it both ways,” Appleton said.
“St. Louis on the Air” discusses issues and concerns facing the St. Louis area. The show is produced by Mary Edwards and Alex Heuer and hosted by veteran journalist Don Marsh. Follow us on Twitter: @STLonAir.