Windy City Media Group Frontpage News
Celebrating 30 Years of Gay Lesbian Bisexual and Trans News
home search facebook twitter join
Gay News Sponsor Windy City Times 2019-07-10
About WCMG Publications News Index  Entertainment Features Bars & Clubs Calendar Videos Advertisers OUT! Guide    Marriage



Relationships & the Law Today: Possible Supreme Court marriage outcomes
by Leslie A. Gutierrez

facebook twitter google +1 reddit email

On April 28, 2015, the U.S. Supreme Court heard oral argument on the legal challenges to bans on marriage rights for same-sex couples in Obergefell v. Hodges. Specifically, the Court was tasked with addressing two questions: ( 1 ) whether states must perform same-sex marriages; and ( 2 ) whether states must recognize same-sex marriages performed in another state where such marriages are legal.

The Supreme Court is comprised of nine Justices. The "liberal bloc" of the Supreme Court consists of Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor, Justice Elena Kagan, and Justice Stephen Breyer. All indications suggest that they will rule in favor of marriage equality. The clear conservatives on the bench include Justice Antonin Scalia, Justice Samuel Alito, and Justice Clarence Thomas. There is little doubt that they will side against marriage equality. The remaining two Justices—Chief Justice John Roberts and Justice Anthony Kennedy—provide the ambiguity.

Justice Roberts is one of the more conservative Justices on the bench and has a record of casting votes in favor of conservative outcomes far more often than not. However, in in recent years, he has voted consistent with the Court's liberal bloc on several occasions. Some legal scholars believe he may vote in favor marriage equality. That said, many believe that if he does rule in favor of marriage equality, he will choose to write the opinion that will accompany the ruling and he will likely write it in a narrow way, limiting the opinion's applicability to marriage rights only ( without leaving any room for the opinion to be applied to extend further rights to LGBT individuals and families ).

However, same-sex couples do not need Justice Roberts' vote to achieve victory. Even if Justice Roberts votes against marriage equality, the tie-breaker will belong to the infamous "swing-vote" on the bench—Justice Kennedy. In the past, Justice Kennedy has voted in favor of gay rights. He voted in favor of striking down "laws against sodomy" in Lawrence v. Texas and just less than two-years ago in U.S. v. Windsor, he voted in favor of striking down the section of the federal "Defense of Marriage Act" law that defined marriage as between a man and woman only.

Thus, even without Justice Roberts' vote, if Justice Kennedy follows his prior pattern of analysis, the Supreme Court should issue a national mandate for marriage equality with a 5-4 decision. Both Justice Roberts and Justice Kennedy asked tough questions to both sides during oral argument, not giving any clear indication as to which way they will decide. While the ultimate decision is still up in the air, we do know that there are a few outcomes.

First, marriage equality could lose 5-4 if both Justice Roberts and Justice Kennedy side against same-sex couples. Most legal scholars believe that such a decision is unlikely, but possible. If that were the case, same-sex marriage would still be legal in the states that currently allow it. However, the remaining states would be permitted to continue to ban and/or refuse to recognize same-sex marriage.

Second, the Court could rule narrowly, answering no to the first question but yes to the second question. In other words, the Court may find that states do not have the obligation to perform same-sex marriages but that they must recognize same-sex marriages conducted in other states, though it is difficult to imagine how the Court could conceive of a legal distinction between the two. Nonetheless, if the Court feels unready to hand down a broad, sweeping decision that would make same-sex marriage the law of the land, this option provides the Court a way to grant some rights but postpone the question of full marriage rights.

Finally, the Court could issue a complete victory for same-sex marriage. If the court decides that there is a constitutional right to marry and that states are required to perform and recognize same-sex marriages, then same-sex marriage will be allowed nationwide. Such a decision will also deem all current same-sex marriage bans are unconstitutional and all states that currently have such bans in place will have to begin issuing marriage licenses to same-sex couples.

The Supreme Court will release its ruling on Obergefell v. Hodges in June.

Leslie A. Gutierrez is an Associate at Clark Hill PLC and focuses her practice on business litigation and estate and trust litigation.

facebook twitter google +1 reddit email

Windy City Media Group does not approve or necessarily agree with the views posted below.
Please do not post letters to the editor here. Please also be civil in your dialogue.
If you need to be mean, just know that the longer you stay on this page, the more you help us.


Gay News

Larry Kramer gives us one more chance to wake the f*ck up 2019-07-10 - Our friend Larry Kramer, the godfather of the AIDS activism movement, hasn't lost his edge. That should surprise no one. In his speech ...

Gay News

Moments in the Public Health Response to AIDS, CDPH LGBTQ Outreach Keynote June 28 2019-07-01 - Chicago Department of Public Health LGBTQ Outreach Keynote Speech, given by Tracy Baim, June 28, 2019, Chicago Cultural Center The following keynote speech ...

Gay News

Looking back, looking forward 2019-06-26 - As we look forward to the anniversary of the Stonewall Uprising and celebrate PRIDE month, I think about progress made—but also about work ...

Gay News

We remember, we celebrate, we believe 2019-06-18 - There is a lot of remembering, celebrating and believing going on right now. The "uprising" at the Stonewall Inn 50 years ago represents ...

Gay News

LETTER Respecting elders 2019-06-18 - Dear Editor: No one likes to talk about it, but it happens every day. However, this crisis remains vastly underidentified and underreported. ...

Gay News

CONCERT REVIEWS X and The Damned, Gogol Bordello, Bettye Lavette and more 2019-06-17 - If the concert scene in Chicago this past May was characterized by gloom, dampness and a scarcity of choices, the shows in June ...

Gay News

New report reviews laws, policies affecting LGBTs in U.S. territories 2019-06-11 - ( Boulder, CO ) June 11, 2019—Progress towards full equality for lesbian, gay, bisexual and transgender ( LGBT ) people in the United ...

Gay News

Vatican publishes anti-LGBT document 2019-06-10 - The Vatican has released the document "Male and Female He Created Them: Towards a path of dialogue on the question of gender in ...

Gay News

Trans deaths are real deaths 2019-06-05 - In a suburb just outside of Dallas, and to the disbelief of many—straight and LGBTQ—across the country, a transgender mural is painted on ...

Gay News

Five reasons the Gilead deal is a steaming pile of Truvada 2019-05-22 - Gilead Sciences, the pharmaceutical that makes Truvada, the only FDA-approved drug for PrEP, is having a great week in the public relations department. ...


Copyright © 2019 Windy City Media Group. All rights reserved.
Reprint by permission only. PDFs for back issues are downloadable from
our online archives. Single copies of back issues in print form are
available for $4 per issue, older than one month for $6 if available,
by check to the mailing address listed below.

Return postage must accompany all manuscripts, drawings, and
photographs submitted if they are to be returned, and no
responsibility may be assumed for unsolicited materials.
All rights to letters, art and photos sent to Nightspots
(Chicago GLBT Nightlife News) and Windy City Times (a Chicago
Gay and Lesbian News and Feature Publication) will be treated
as unconditionally assigned for publication purposes and as such,
subject to editing and comment. The opinions expressed by the
columnists, cartoonists, letter writers, and commentators are
their own and do not necessarily reflect the position of Nightspots
(Chicago GLBT Nightlife News) and Windy City Times (a Chicago Gay,
Lesbian, Bisexual and Transegender News and Feature Publication).

The appearance of a name, image or photo of a person or group in
Nightspots (Chicago GLBT Nightlife News) and Windy City Times
(a Chicago Gay, Lesbian, Bisexual and Transgender News and Feature
Publication) does not indicate the sexual orientation of such
individuals or groups. While we encourage readers to support the
advertisers who make this newspaper possible, Nightspots (Chicago
GLBT Nightlife News) and Windy City Times (a Chicago Gay, Lesbian
News and Feature Publication) cannot accept responsibility for
any advertising claims or promotions.







About WCMG Publications News Index  Entertainment Features Bars & Clubs Calendar Videos Advertisers OUT! Guide    Marriage

About WCMG      Contact Us      Online Front  Page      Windy City  Times      Nightspots      OUT! Guide     
Identity      BLACKlines      En La Vida      Archives      Subscriptions      Distribution      Windy City Queercast     
Queercast Archives      Advertising  Rates      Deadlines      Advanced Search     
Press  Releases      Event Photos      Join WCMG  Email List      Email Blast     
Upcoming Events      Todays Events      Ongoing Events      Post an Event      Bar Guide      Community Groups      In Memoriam      Outguide Categories      Outguide Advertisers      Search Outguide      Travel      Dining Out      Blogs      Spotlight  Video     
Classifieds      Real Estate      Place a  Classified     

Windy City Media Group publishes Windy City Times,
The Bi-Weekly Voice of the Gay, Lesbian, Bisexual and Trans Community.
5315 N. Clark St. #192, Chicago, IL 60640-2113 • PH (773) 871-7610 • FAX (773) 871-7609.