WASHINGTON – A victory at the U.S. Supreme Court on same- sex marriage would be a historic moment for gay rights. Defeat would bring legal pandemonium.
The Supreme Court will decide by the end of the month whether the Constitution gives gays the right to marry. The court’s actions until now have suggested that a majority of the nine justices will vote to legalize same-sex weddings nationwide.
Should the court rule otherwise, it would throw gay rights into turmoil across the country, halting weddings in at least 15 states, raising questions about tens of thousands of unions and guaranteeing a new round of legal fights.
“It’s going to be a big mess, not only because gays will be allowed to get married in some states but not others,” said Brian Fitzpatrick, a constitutional law professor at Vanderbilt Law School in Nashville. “Even within the same state, some gays will be married, some gays won’t be able to get married and some gays won’t know whether they’re still married.”
Right now, gay couples can marry in 36 states. In 16 of those, including New York and Illinois, the right stems from state law – either a court decision interpreting the state constitution or a statute approved by the voters or legislature. Those states wouldn’t be directly affected by a Supreme Court ruling, which would center on the U.S. Constitution.
The situation would be more complicated in the other 20 states, all of which began issuing same-sex marriage licenses because of federal court decisions over the last two years. A Supreme Court vote against marriage rights would cast doubt on those rulings, with the precise implications varying from state to state.
In many states, gay marriage would stop almost immediately. State leaders could merely order local officials to cease issuing licenses, even before the formal lifting of court orders that struck down bans. Among them: Florida, South Carolina, Kansas, Idaho and Alaska – states that unsuccessfully urged the Supreme Court to try to stop gay marriage before it started.
The outcome would be less clear in states where government leaders support marriage rights. Officials in California, Pennsylvania, Colorado, Oregon and Virginia all abandoned their defenses of gay-marriage bans during litigation.
Gay-rights advocates say they are hopeful those states will find a way to keep same-sex marriage even in the face of a Supreme Court defeat.
“Realistically, I think we would lose the freedom to marry in some states that have it, but we hope that wouldn’t be true in many places,” said Susan Sommer, director of constitutional litigation at Lambda Legal, one of the advocacy groups that urged the court to back marriage rights.
Should officials try to retain same-sex marriage in those states, a key issue would be whether anyone would have the legal right to challenge that decision in court.
Two years ago, the Supreme Court ruled that the sponsors of California’s Proposition 8, the 2008 ballot initiative that banned same-sex marriage, couldn’t appeal a judge’s decision that overturned the measure. That cleared the way for legalized marriage because Gov. Jerry Brown and Attorney General Kamala Harris support gay weddings and didn’t appeal.
One possibility is that a county clerk in California or another state could refuse to issue licenses to same-sex couples – and draw a lawsuit by people seeking to wed.
“Even if the attorney general doesn’t do her job, I think there’s a fairly likely scenario that we’re going to get it revisited one way or another,” said John Eastman, a gay- marriage opponent who teaches at Chapman University’s law school in Orange, Calif.
Already-married couples might not be safe. Plaintiffs who sued a state and won a final ruling would still have valid marriages, but questions would surround the larger group of people who got married by relying on that ruling, Fitzpatrick said.
“It could be a hard question,” said Fitzpatrick, a former law clerk to Justice Antonin Scalia who helped one of the marriage-rights lawyers prepare for the April argument. “It’s at least possible for the state to say, ‘We’re dissolving your marriage.’ It’s politically difficult, I think, but it’s at least possible.”
And even gay couples with valid marriages might find themselves with fewer rights than their opposite-sex counterparts. That’s because the Supreme Court is also considering whether states must recognize marriages from other jurisdictions. If the answer to that question is no, couples could lose hospital-visitation privileges and other marital rights as soon as they cross state lines.
Should that sort of disorder take place, the Supreme Court itself would bear much of the blame. Since October, the court has let the number of gay-marriage states increase from 19 to 36 by either rejecting appeals or refusing to stop pro-marriage lower court rulings.
It’s a potential irony that wouldn’t be lost on gay-rights advocates.
The court “helped to cause the map of the United States to change dramatically,” said Sommer of Lambda. “It would be very painful to have to set the clock back.”
It’s also one reason some observers predict the court won’t take that route.
“It’d be chaos of the court’s own making,” Fitzpatrick said. “It would be so irresponsible, I cannot believe the court would do it.”