The Supreme Court: Equal Justice Under Law

By Michael A. Keshmiri

Michael A. Keshmiri is a student at the University of Pennsylvania and an associate editor of the Penn Undergraduate Law Journal.

Last year, the U.S. Courts of Appeals for the Fourth, Seventh, Ninth, and Tenth Circuits struck down state bans on same-­sex marriage, rapidly increasing the number of states where same­-sex marriages are legal. [1] Since the rulings of these lower level courts did not conflict, the U.S. Supreme Court, having long been reticent in definitively ruling whether bans on same-­sex marriage violate the U.S. Constitution, chose not to intervene. However, on November 6, 2014, the Court of Appeals for the Sixth Circuit upheld bans on same-­sex marriage in four states, putting this decision directly at odds with rulings from its sister courts. [2]

The 2­-1 decision in the Sixth Circuit stressed that it is up to the states to decide on the issue of same-­sex marriage, not the federal courts. “Better, in this instance, we think,” wrote Circuit Judge Jeffrey Sutton, “to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair­-minded way.” [3] Senior Judge Martha Craig Daughtrey, however, issued a stern dissent reminding her colleagues that federal courts have a duty to protect the constitutional rights of the minority. [4]

A conflict of this sort in lower-­tier federal courts all but guarantee intervention from the Supreme Court. Indeed, on January 16th, 2015, the Supreme Court announced that it would hear oral arguments in a combined case on April 28th, when it will decide on two questions: whether state constitutional and statutory bans on same-­sex marriage violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment and whether a state’s refusal to recognize same-­sex marriages legally performed in other states violates the Full Faith and Credit Clause of the U.S. Constitution. [5]

Rulings on the above questions will most definitely settle the issue of whether or not same-­sex marriages are constitutionally protected. But how will the Court rule? The answer to this might be found in a recent turn of events in Alabama.

On January 23rd, a federal district judge in Alabama ruled that gay couples in the state had the constitutional right to marry. As a result of this latest ruling, 37 states and the District of Columbia have now legalized gay marriage. The Alabama Attorney General asked for a stay in the ruling, which the federal district judge declined to issue. The state of Alabama then appealed the denial to the U.S. Supreme Court, which the Supreme Court upheld, in effect allowing same-sex marriages in Alabama to proceed. [6]

Justices Clarence Thomas and Antonin Scalia issued a dissent to the denial of the stay in the Alabama case. Justice Thomas pointed out that when courts declare state laws unconstitutional, it is routine procedure for the Supreme Court to let the laws stand during the appellate process. The seven justices denying the stay in Alabama, Thomas wrote, were acting as if the Court had already declared that the Constitution guarantees the right to same-sex marriage. [7] In an interesting turn of events, Chief Justice Roberts and Justice Alito, both firm conservatives, voted to deny the stay in the Alabama case.  The New Yorker staff writer Jeffrey Toobin suggested, “The only reasonable conclusion is that Roberts and Alito saw the writing on the wall: it is preordained that the Court will vote for nationwide marriage equality later this year.” [8] Whether or not this is true, the Court’s behavior does indeed make it seem like it is likely to rule in favor of a constitutionally protected right to same­-sex marriage.

In response to the federal district court ruling of the unconstitutionality of Alabama’s ban on gay marriage and the Supreme Court’s subsequent refusal to issue a stay, Roy Moore, the Chief Justice of the Alabama Supreme Court, prohibited the state’s probate judges from issuing any marriage licenses to gay couples. [9] Not only is he ordering the state’s probate judges to ignore federal law, but he is also claiming that the Alabama Supreme Court has independent authority to interpret the U.S. Constitution. [10]

This is indeed bizarre for two reasons. First, Roy Moore seems to suggest that even if the U.S. Supreme Court holds same­sex marriage to be a constitutionally protected right, Alabama need not abide by it. Second, and perhaps even more unsettling than the first, the rhetoric employed by Roy Moore in this case is eerily similar to that used by Alabama Governor George Wallace in response to court mandated public school integration in the 1960s.

 President Obama directed his administration to file an amicus brief in the pending Court case in favor of marriage equality. The brief, filed on March 6th by Solicitor General Donald B. Verrilli Jr., states: “[T]hese facially discriminatory laws impose concrete harms on same­sex couples and send the inescapable message that same­-sex couples and their children are second­-class families.” [11] The brief relies on U.S. v. Windsor (2013), the DOMA case in which the Court held that the federal government “could not refuse to recognize or provide benefits to people in same­-sex marriages that were conducted in states where they were legal,” the same case that several circuit courts relied on in declaring bans on same-­sex marriage unconstitutional. [12] The administration holds that all state restrictions must end, and calls on the Court to recognize that sexual orientation, like race, is a characteristic that deserves special protection.

The Court will likely issue its decision on this matter sometime in mid or late­June. Until then, all we can do is wait and see whether the Supreme Court will extend to gays and lesbians the blessings of liberty enjoyed by all other persons, and take this nation one step closer to realizing the words atop the Supreme Court’s portico: equal justice under law.   

[1] "Supreme Court to Make History by Ruling on Whether the Constitution Provides the Right for Gays to Marry." Washington Post. Accessed March 18, 2015. http://www.washingtonpost.com/politics/courts_law/supreme­court­agrees­to­hear­gay-marriage­issue/2015/01/16/865149ec­9d96­11e4­a7ee­526210d665b4_story.html
[2] "Sixth Circuit: Now, a Split on Same­sex Marriage." SCOTUSblog RSS. November 6, 2014. Accessed March 19, 2015. http://www.scotusblog.com/2014/11/sixth­circuit­the­split­on­same-sex­marriage/
[3] Ibid.
[4] "Supreme Court to Make History by Ruling on Whether the Constitution Provides the Right for Gays to Marry." Washington Post. Accessed March 18, 2015. http://www.washingtonpost.com/politics/courts_law/supreme­court­agrees­to­hear­gay-marriage­issue/2015/01/16/865149ec­9d96­11e4­a7ee­526210d665b4_story.html
[5] "US Top Court to Rule on Gay Marriage." BBC News. Accessed March 18, 2015.http://www.bbc.com/news/world­us­canada­30855786
[6] Toobin, Jeffrey. "Alabama’s Marriage Victory, and the Nation’s." Accessed March 19, 2015.http://www.newyorker.com/news/daily­comment/alabamas­same­sex­marriage­victory­equality
[7] Ibid.
[8] Ibid.
[9] Blinder, Alan. "Alabama Judge Defies Gay Marriage Law." The New York Times. February 8, 2015. Accessed March 17, 2015. http://www.nytimes.com/2015/02/09/us/gay­marriage­set­to-begin­in­alabama­amid­protest.html
[10] "Alabama Judge Urges Quick Action If Same­sex Marriage Wins." SCOTUSblog RSS. March 18, 2015. Accessed March 19, 2015. http://www.scotusblog.com/2015/03/alabama­judge-urges­quick­action­if­same­sex­marriage­wins/#more­226205
[11] "Obama's Words in Same­sex Marriage Filing to Court Is a Major Shift for Him." Washington Post. Accessed March 18, 2015.  http://www.washingtonpost.com/politics/obamas-words­in­same­sex­marriage­filing­to­court­is­a­major­shift­for­him/2015/03/06/83940fa0­c339­
11e4­9271­610273846239_story.html
[12] "Supreme Court to Make History by Ruling on Whether the Constitution Provides the Right for Gays to Marry." Washington Post. Accessed March 18, 2015. http://www.washingtonpost.com/politics/courts_law/supreme­court­agrees­to­hear­gay-marriage­issue/2015/01/16/865149ec­9d96­11e4­a7ee­526210d665b4_story.html


Photo Credit: Flickr User Chris Gladis