What Happens If We Lose At The Supreme Court?
Last week the Supreme Court announced it would hear arguments in four same-sex marriage cases. It was momentous and long-overdue news, to be sure, but as the excitement died down we couldn't help but ask: What if we lose?
In the short run, if the Supreme Court upholds the bans in Kentucky, Michigan, Ohio, and Tennessee—where the four cases originated—same-sex couples would have to turn to their state legislatures to overturn them. (Michigan and Ohio also have ballot-initiative processes.)
But what about couples in other states?
Well there's no simple answer, but Lambda Legal has parsed out the possibilities:
With respect to same-sex couples who already have legally married, Lambda Legal strongly believes that those marriages will remain valid and will need to continue to be respected by the states in which those marriages were entered. Just this past week, a federal district court in Michigan ruled along the same lines with respect to the marriages 300 same-sex couples entered in that state before the 6th Circuit's adverse ruling...
With respect to whether same-sex couples would be able to marry and would have their marriages respected in other states, that would vary from state to state. States in which marriage equality was achieved by a ruling under the state's constitution, by legislative reform or at the ballot box would be unaffected.
States in which a final judgment has been obtained in federal court would be required to continue to allow same-sex couples to marry and to respect out-of-state marriages entered by same-sex couples unless and until someone with standing makes a motion to reopen the judgment and that motion is granted (unless stays are properly obtained before then). In some states, there may be no one with standing interested in seeking to set aside the existing judgment.
Same-sex couples in states in which a judgment is on appeal or can still be appealed, where the judgment has not been stayed, should be able to continue to marry and to have their out-of-state marriages honored by the state unless and until the existing judgment is stayed or reversed. Depending on how the Supreme Court rules, there may be other arguments that can be advanced to defend these judgments.
In short, it will create a labyrinth that the LGBT community and our allies will have to navigate—one where the exit keeps moving.
We're cautiously optimistic the Court will rule in our favor: In just the past year, there's been a landslide of precedents in support of the freedom to marry—including the Supreme Court's own rulings striking down Proposition 8 and the Defense of Marriage Act in 2013.
But even the most hopeful activists agree the justices will vote along a 5-4 split, too narrow a margin to be comfortable about.
We'll continue to explore the issues, personalities and questions surrounding marriage equality as we close in on April's arguments and the eventual verdicts.
