What can we expect regarding rulings on marriage equality from SCOTUS, the 5th Circuit? And what happens when those rulings are handed down?
DAVID TAFFET | Senior Staff Writer
June is the traditional month for weddings. But same-sex couples that want to get married in Texas this year might want to hold off until July.
That’s because the Supreme Court of the United States is hearing marriage equality cases from the 6th Circuit Court of Appeals on April 28 and is expected to render its decision by June 29, the last day of the court’s session. Most court watchers expect that the court will rule in favor of equality, making same-sex marriages legal nation-wide.
At its hearing later this month, the Supreme Court will consider two questions: “Does the 14th Amendment require a state to license a marriage between two people of the same sex?” and “Does the 14th 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?”
Mary Bonauto, civil rights project director at Gay and Lesbian Advocates & Defenders, will present arguments for the first question. Bonauto’s office wouldn’t predict an outcome, but assured that the matter is in good hands.
“We never, never, never make predictions,” said GLAD spokeswoman Carisa Cunningham, “but we’re confident we’ll get a fair hearing and we know we have a strong case.”
Cunningham called Bonauto one of the most experienced and successful marriage equality attorneys in the U.S. Former Rep. Barney Frank once called her “our Thurgood Marshall,” referring to the attorney who won the landmark 1954 Brown v Board of Education case.
Bonauto, who’s been with GLAD since 1990, argued Goodridge v Department of Public Health, the Massachusetts case that resulted in Massachusetts becoming the first state to legalize same-sex marriage. Before that, she filed the Vermont lawsuit that resulted in Vermont becoming the first state to offer civil unions.
More recently, Bonauto argued a case in Massachusetts that successfully challenged the federal Defense of Marriage Act. She then joined the legal team for Windsor v. U.S., a case that resulted in a U.S. Supreme Court ruling striking down section 3 of DOMA in 2013.
Cunningham said that in preparation for the April 28 hearing, Bonauto is “shutting off her email” for the next few weeks while she reads Supreme Court decisions and practices answering questions in mock oral arguments.
If the Supreme Court rules in favor of marriage equality in June, Cunningham said, the remaining 13 non-equality states — including Texas — should have marriage pretty quickly, despite any efforts by state attorneys general or other state officials to stop it.
“A Supreme Court ruling is a pretty powerful tool,” she said.
However, there will likely be more battles to fight. Even in liberal Massachusetts, which became the first marriage equality state in 2004, the state Supreme Court decision was only 5-4, and it survived with little challenge because the state doesn’t allow ballot measures and the state’s Constitution is difficult to amend. Lawmakers in Congress, including right-wing Texas Sen. Ted Cruz, have already begun talking about ways to short-circuit a SCOTUS ruling in favor of equality, including amending the U.S. Constitution, even though that is a long and arduous process.
Despite marriage equality being a done deal in Massachusetts for more than a decade, Cunningham said people there are “tremendously excited” at the possibility of marriage equality nation-wide. The people who were there at the beginning want to be there at the finish line, she said.
Lambda Legal Supervising Senior Staff Attorney Ken Upton said one of the cases before the Supreme Court is a Lambda Legal case so he couldn’t make a prediction about the outcome either. But he did talk about what experts in the field are saying.
A year ago, Upton noted, there were 18 marriage equality states. Today there are 20 more because the Supreme Court stopped staying pro-equality rulings.
“Why would they let all these people marry in all these states and then turn around and say, ‘Oh, just kidding,’?” he said. “That’s a little cruel.”
Upton said he’s been reading briefs that have been submitted to the Supreme Court and has seen nothing new from the opposition. He added that while the court is likely to rule on the last day of the session — June 29 — the justices could issue a decision earlier. But rulings in the most controversial cases are usually left for the last day.
But, he added, “Maybe [marriage isn’t] controversial anymore.” A case heard earlier this winter involving federal subsidies for health insurance was more controversial, he suggested.
The court could even hold a ruling over until next session, Upton acknowledged, but that rarely happens.
Once the SCOTUS ruling comes down, Upton expects clerks in some counties — like Dallas and Travis — to issue licenses immediately. Attorney General Ken Paxton could try to stop them, but Upton thinks it’s unlikely he’d be able to obtain an injunction.
Many county clerks around Texas may wait for a mandate from the 5th Circuit, which could be issued immediately or not come until July.
Upton said one way marriage could come to Texas earlier would be a ruling from the 5th Circuit on the cases it heard in January, but he thinks that’s unlikely. Had the court intended to rule, it would have acted when Neal Lane, lead attorney in the Texas marriage equality case, asked the court to lift the stay in March. He said he believes the 5th Circuit has decided to wait for the Supreme Court to rule.
Community activist Todd Whitley said the excitement over the Supreme Court hearing is growing around the country, but especially in states like Texas that haven’t yet achieved equality.
On April 27, the eve of the Supreme Court hearing, Whitley said people will gather at the Legacy of Love Monument on Cedar Springs Road at 7 p.m. Community leaders will speak about why marriage equality is important.
He said “Lighting the Way to Justice” rallies will be held across the country that night.
After the Supreme Court hearings the next morning, several couples will hold a press conference at the Dallas County Records Building to speak about what the hearing means to them.
When the Supreme Court rules in June, Whitley said, a march is planned from the Dallas County Records Building to the Legacy of Love Monument.
Depending upon the wording of the ruling, a flood of couples may be expected to apply for their marriage licenses that day. Although Texas has a three-day waiting period, a number of Dallas County judges are expected to waive that waiting period for couples that have already been waiting years for the right to marry in Texas and allow them to marry immediately.
This article appeared in the Dallas Voice print edition April 10, 2015.