The question of whether there is a constitutional right to same-sex marriage will finally have its day in court this week. On Tuesday, the Supreme Court will hear two and a half hours of oral argument in a quartet of cases on this subject. If the court reverses lower court rulings that upheld bans on same-sex marriage, it could mean that every state would have to honor such marriages performed in other states, and could require every state to permit them. A decision is expected this summer, most likely in late June. In this edition of Priors and Precedent, we’ll dig into some data and two sources of predictions for this landmark case. First, some background.
The Case
The petitioners are 12 couples and two widowers from states that bar same-sex marriage. A recent profile by NPR dubbed them “‘accidental activists,’ meaning they filed lawsuits not to further a cause but because of the way the bans affected their lives.”
The challenge to the bans, known as Obergefell v. Hodges, is actually four cases rolled into one.1 The court consolidated them and limited its consideration to these two questions:
Does the 14th Amendment require a state to license a marriage between two people of the same sex? 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?
The first is called the “marriage” question, the second the “recognition” question. The court will hear 90 minutes of argument on the former and an hour of argument on the latter. Civics refresher: The 14th Amendment guarantees certain rights under its “due process” and “equal protection” clauses.
If the answer to the first question is “yes,” then the answer to the second is irrelevant, of course.
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