In January, the Supreme Court announced it will review four cases pertaining to same-sex marriage in the United States. The fundamental constitutional question at stake in these cases is not whether same-sex marriage is or is not okay, it is whether or not the states have the right to define marriage for their residents. Do states have the legal authority to define and regulate marriage or does that authority rest with the central government? Thus, this debate involves the merits of our federalist system.
How do cases reach the Supreme Court and what is the process for review? The Supreme Court hears fewer cases than lower courts and the process to get to the Court is protracted. There are four criteria a case must meet in order for it to reach the Supreme Court:
- There must be an actual, real-world case involving two parties who disagree.
- The two parties must have standing, meaning they must have claim to personal or economic injury.
- The case must not be moot. If the facts of the case have changed or if the case has been resolved, it is ineligible to reach the Court.
- Cases must be ripe, meaning the case must involve a law or action that is currently implemented or has occurred to be eligible for review. For example, the Court cannot review a law that the president has not yet signed.
Once meeting these criteria, a case can take two paths to the Supreme Court via original or appellate jurisdiction. The most common path is through appellate jurisdiction – the Court’s ability to hear cases on appeal from a lower court. To seek an appeal, a writ of certiorari must be filed with the Supreme Court where justices review the petitions. If at least four of the nine justices agree that a case should be heard, it is granted a writ of certiorari and proceeds on to be reviewed by the Court.
In cases of appellate jurisdiction, the Court only reviews the application of the law by lower federal or state courts (i.e., U.S. courts of appeals), and no testimony or evidence is presented. Once the case is before a Supreme Court, lawyers on both sides submit briefs and oral arguments. A majority decision involves five of the nine sitting justices.
“US Supreme Court” by Roman Boed (CC BY 2.0)
In mid-January, the Supreme Court agreed to hear four new cases on same-sex marriage (Bourke v. Beshear, DeBoer v. Snyder, Obergefell v. Hodgets, and Tanco v. Haslam) that originated in Kentucky, Michigan, Ohio and Tennessee. The terms of the hearings have been set and a decision is expected sometime this summer. Specifically, the Court seeks to rule on the following two questions:
“1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?”
Yes, the substantive issue at hand is a very personal one, support for which has increased in the United States over the past few years. The legal issue, however, rests on over two hundred years of legal debate. If the Court does rule that states are required to do the above, it will most probably lead to the expansion of marriage equality in the United States as President Obama and his administration have made clear.
Depending on an individual’s beliefs about the role of government in society, it is possible to support gay marriage but believe that the states have the legal right to make that call. It is unclear where some of the justices will fall this time around. For example, Justice Anthony Kennedy, who was integral in the Court’s historic strike down of components of the Defense of Marriage Act (DOMA), is an avid states right supporter. Chief Justice John Roberts remains a wild card. This summer will be important not only for the future of same-sex marriage in the United States but also for the continued power struggle between federal and state governments.
Further Reading
- Supreme Court agrees to hear gay marriage issue
- Supreme Court to hear same-sex marriage case
- Court will rule on same-sex marriage
- Attorney General Holder Statement On Supreme Court Decision To Hear Same-Sex Marriage Cases
- The Supreme Court takes on gay marriage: How each justice will (probably) vote
- John Roberts May Finally be Ready to Legalize Same-Sex Marriage
- Supreme Court Procedures
- Supreme Court History
- Supreme Court strikes down key part of the Defense of Marriage Act