Family Policy Watch: Possible outcomes of Supreme Court case on marriage of same-sex couples

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Family Law and Public Policy

Part of NCFR's mission is to provide information to family science professionals about the policymaking process and the impact of policies on families, which Family Policy Watch is meant to help achieve.

In June, the U.S. Supreme Court is expected to issue a ruling in a landmark case regarding marriage for same-sex couples.

On April 28, 2015, the U.S. Supreme Court heard oral arguments in the case, Obergefell v. Hodges. Two questions were heard during oral arguments:

  1. Does the 14th Amendment require a state to license a marriage between two people of the same sex?
  2. 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?

What is the 14th Amendment?

The 14th Amendment of the U.S. Constitution, Section 1, states that "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Due process and equal protection are the key terms in question.

Possible Outcomes

If the Supreme Court rules on the first question that the 14th Amendment requires a state to license a marriage between two people of the same sex, the second question — whether a state would have to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state — would become moot, as all states would be required to legally license and perform marriages for two people of the same sex.

If the court rules on the first question that the 14th Amendment does not require a state to license a marriage between two people of the same sex, the court can decide in one of two ways with respect to the second question:

  • The court could decide that states must recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state. Essentially, couples could get married in a state that lawfully licenses and performs marriages for same-sex couples and be recognized as a lawfully married couple in their home state, or any other state.
  • The court could decide that states are not required to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed in a different state. A decision in which states do not have to license a marriage between two people of the same sex, nor recognize the legal marriages performed in another state, would essentially leave the laws as they stand now — leaving it up to each individual state to decide.

A final potential outcome is that the U.S. Supreme Court could decide the legal questions are out of its jurisdiction because family law has historically been decided at the state level. In this case, the decision would be left up to the states or state courts.

In these last three cases, it could be possible for states to reinstate bans on marriage for same-sex couples that had been struck down as unconstitutional. It is still unclear whether those bans would immediately be reinstated or would require subsequent legal or legislative action.

For more information, visit the SCOTUSblog case webpage. You can also find amicus briefs and party briefs online.

Audio and written transcripts from the April 28 oral arguments also are posted online: