Legal Issues In the News

Same-Sex Marriage In Front of the Supreme Court


It’s not exactly news that the United States Supreme Court will soon decide whether state laws banning same-sex marriages violate the Constitution. The Court will hear arguments in late April, with a decision expected in June.

But what would a decision either way actually mean – what would the nitty-gritty effects be for states and the people who live in them?

First, let’s imagine the Court rules in favor of marriage equality, saying the Constitution prevents states from restricting marriage to opposite-sex couples. The immediate effect of such a decision is pretty clear. No state could enforce a statute or a state constitutional provision that restricted marriage rights in that way. Marriage equality would be the law of the land, both in the thirty-six states that are already allowing it and in the fourteen states than aren’t.

But the story’s not quite that simple. Depending on how exactly the Court justified a decision in favor of marriage equality, state legislatures that really don’t like the idea might still have an option. A nuclear option, if you will. If the Court based its opinion on the constitutional guarantee that every citizen is entitled to the equal protection of the laws, then some states might, conceivably, stop recognizing any marriages – same-sex or opposite-sex. That way, they could argue, they would be treating everyone equally.

Any state that “went nuclear” by taking itself out of the marriage-recognizing business would face at least two serious downsides: First, the state would either have to forgo giving spouses preference under state laws governing such topics as inheritance, or try to come up with some indicator other than marriage on which to base such preference. But then, the logic of the Supreme Court’s decision would almost certainly require the state to include same-sex couples in that alternate scheme anyway – so that path looks like a dead end.

Second, the state’s citizens might start losing out on the federal-law benefits of being married. In order to get some of those benefits, including those under the tax code, citizens of a state that went nuclear would have to get married in some other state; other benefits of marriage, including those under the Social Security program, might simply be unavailable to such a state’s citizens. For these and other reasons, it’s not likely that any states would actually choose the nuclear option, although some might very publicly explore that possibility for a while.

But what if the Court decides in June that the Constitution does not bar states from restricting marriage to opposite-sex couples? By my count, the number of states where same-sex marriages are allowed would immediately drop from thirty-six to sixteen (plus the District of Columbia).

One side effect of an anti-marriage-equality decision by the Court might be an increase in so-called marriage tourism: same-sex couples traveling from their home states to get married in states that allow it. Couples in, say, Wisconsin might be eager to cross the border into Illinois or Iowa to get married, thereby getting many (but not all) of the federal-law benefits of marriage.

That means states with marriage equality might be able to attract significant out-of-state wedding business from same-sex couples. Some states, in order to participate in that market fully, might have to amend their laws to get rid of residency requirements or, as in Illinois, provisions that say out-of-state couples can’t get married there if the marriage would be void in their home state.

If you’ve been following the buildup to the Supreme Court’s decision on this issue, then your guess is probably as good as mine as to how the Court will rule, and on what basis. For same-sex couples across the country, there’s obviously a lot riding on the outcome. But the same is true for state legislators who might face hard decisions, and for people and companies in the marriage business. Come what may, these are momentous times.

I’m Sean Anderson.