Supreme Court and gay marriage — U of I expert weighs in

From the University of Illinois News Bureau

Editor’s note: After sidestepping the issue last fall, the U.S. Supreme Court will decide by late June whether all 50 states must allow gay and lesbian couples to marry. University of Illinois law professor Sara R. Benson, an expert on sexual orientation and the law, spoke with News Bureau Business and Law Editor Phil Ciciora about the case, which some see as the civil rights issue of our time.

Q: Is this case likely to be the final say in marriage equality?

A: It depends. If the court rules that it’s unconstitutional to discriminate against gays and lesbians by forbidding them to marry, then yes. The decision could parallel its famous decision in Loving v. Virginia, when it ruled that miscegenation statutes were unconstitutional. If the court finds that marriage is a fundamental right that is being unfairly withheld from a group of people, as in Loving, the issue would be conclusively resolved.

However, the court could choose to follow the federalism line of reasoning it expounded on in the recent Windsor decision, when the court noted that subject to constitutional limitations, marriage is a state law issue. In that case, the issue of same-sex marriage would remain, with individual states deciding whether to permit same-sex couples to marry, either through the legislature or state court decisions.

Q: What do you foresee happening? Like a few other recent cases, does it all come down to Justice Anthony Kennedy’s vote?

A: Kennedy’s vote is crucial, and I am optimistic that he will rule in favor of same-sex marriage. Why? In 2003, he authored the opinion in Lawrence v. Texas, which was very friendly to the gay and lesbian community.

However, Kennedy also authored the Windsor decision that weighed heavily in favor of federalism. But he also noted an exception to the principles of state rights, when the state laws at issue are violating the core principles of the Constitution, which I believe the laws against same-sex marriage do.

This begs the question of why Kennedy didn’t rule in favor of same-sex marriage in Windsor. I believe it’s because the issue wasn’t ripe for review in that case. The issue was limited to whether the Defense of Marriage Act was constitutional.

In a cunning move, Kennedy guarded his opinion on the merits of same-sex marriage in Windsor. In the opinion, he distinctly noted that state marriage laws are still subject to the Constitution and that they may be struck down if they are unconstitutional, without moving to do so in Windsor because the issue of same-sex marriage was not squarely before the court.

Q: If the court keeps the ban in place to preserve states’ rights, would it have any bearing in states where gay marriage is already legal?

A: If the court decides that this is an issue for the states and that there is no constitutional provision forbidding the exclusion of same-sex couples from marriage, then some states will permit same-sex marriage and some will not. States like Illinois, which obtained marriage rights through the Legislature, will continue to offer the right of marriage to same-sex couples, as will those that won the right on state constitutional grounds.

However, those states that won a court challenge will likely lose the right to same-sex marriage in deference to the state’s ban on the right to marry.

Q: If the Supreme Court decides that same-sex marriage bans are constitutional, what would happen to already-married gay and lesbian couples?

A: The answer to this question is a bit unclear and is quite complicated. In the California proceedings under Prop 8, when many couples were already married, the California Supreme Court decreed that previously entered into marriages were still legitimate, as the constitutional amendment had no retroactive clause. Similarly, a district court in Michigan ruled after the 6th U.S. Circuit Court of Appeals found that there was no constitutional right to same-sex marriage that the previously entered into marriages also should remain valid. But this outcome is not at all certain and would likely be litigated in each jurisdiction where same-sex marriage rights were gained through federal constitutional claims.

Q: You’ve researched and written about gay marriage and domestic violence. Would the legalization of gay marriage make it easier for gay and lesbian couples to speak up about domestic violence and seek legal protection?

A: Yes, I think so. In my most recently published article, I point out that along with marriage comes a family law principle: the presumption of parentage to children born within the marriage. If a child is born to a married lesbian couple, then both mothers would be presumed the parent of the child. However, without same-sex marriage, parenting issues are confusing, at best, to the couple and often difficult to determine. A mother who does not know what her parental rights are to a particular child may fear that she will lose custody of the child if she reports abuse to the authorities, either due to a real or a perceived lack of parental legal protections, or due to heterosexist norms in the court system. That is, she may lose the child to the biological father.

Thus, granting marriage rights to same-sex couples will lend a bit of certainty to the determination of parenthood and, hopefully, permit those suffering from domestic abuse to leave an otherwise harmful situation.

Posted Jan. 23, 2015

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