WASHINGTON
— Just two years ago, the Supreme Court struck down part of the
federal anti-gay marriage law that denied a range of government benefits
to legally married same-sex couples.
The
decision in United States v. Windsor did not address the validity of
state marriage bans, but courts across the country, with few exceptions,
said its logic compelled them to invalidate state laws that prohibited
gay and lesbian couples from marrying.
The number of states allowing same-sex marriage
has grown rapidly. As recently as October, just over one-third of the
states permitted same-sex marriage. Now, same-sex couples can marry in
36 states and the District of Columbia. A look at what is now before the
Supreme Court, and the status of same-sex marriage around the country:
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WHAT'S LEFT FOR THE SUPREME COURT TO DO AMID ALL THIS CHANGE?
The
justices on Tuesday are hearing extended arguments, scheduled to run 2½
hours, in highly anticipated cases about the right of same-sex couples
to marry. The cases before the court come from Kentucky, Michigan, Ohio
and Tennessee, all of which had their marriage bans upheld by the
federal appeals court in Cincinnati in November. That appeals court is
the only one that has ruled in favor of the states since the 2013
Windsor decision.
___
WHAT'S AT STAKE?
Two
related issues would expand the marriage rights of same-sex couples.
The bigger one: Do same-sex couples have a constitutional right to marry
or can states continue to define marriage as the union of a man and a
woman? The second: Even if states won't allow some couples to marry,
must they recognize valid same-sex marriages from elsewhere?
___
WHAT ARE THE MAIN ARGUMENTS ON EACH SIDE?
The
arguments of marriage-rights supporters boil down to a claim that
states lack any valid reason to deny the right to marry, which the court
has earlier described as fundamental to the pursuit of happiness. They
say state laws that allow only some people to marry violate the
Constitution's guarantee of equal protection under the law and make
second-class citizens of same-sex couples and their families. Same-sex
couples say that preventing them from marrying is akin to a past ban on
interracial marriage, which the Supreme Court struck down in 1967.
The
states respond that they have always set the rules for marriage and
that voters in many states have backed, sometimes overwhelmingly,
changes to their constitutions to limit marriage to a man and a woman.
They say a lively national debate is underway and there is no reason for
courts to impose a solution that should be left to the political
process. The states also argue that they have a good reason to keep
defining marriage as they do. Because only heterosexual couples can
produce children, it is in the states' interest to make marriage laws
that encourage those couples to enter a union that supports raising
children.
___
IS THE OBAMA ADMINISTRATION PLAYING A ROLE?
The
administration is backing the right of same-sex couples to marry,
although its argument differs in one respect. The plaintiffs say that
the state laws should fall, no matter what standard the court applies.
The administration calls for more rigorous scrutiny than courts
ordinarily apply to most laws, saying it is appropriate when governments
discriminate against a group of people. That already is the case for
claims that laws discriminate on the basis of race, sex and other
factors. But the administration is silent about what the outcome should
be if the court does not give gays the special protection it has
afforded women and minorities.
The
Justice Department's decision to stop defending the federal
anti-marriage law in 2011 was an important moment for gay rights, and
President Barack Obama declared his support for same-sex marriage in
2012.
___
WHAT HAPPENS IF THE COURT STRIKES DOWN THE STATE BANS?
A
ruling that same-sex couples have a right to marry would invalidate the
remaining anti-gay marriage laws in the country. If the court limits
its ruling to requiring states to recognize same-sex unions, couples in
states without same-sex marriage presumably could get married elsewhere
and then demand recognition at home.
___
WHAT HAPPENS IF THE COURT RULES FOR THE STATES ON BOTH QUESTIONS?
The
bans in 14 states would survive. Beyond that, confusion probably would
reign. Some states that had their marriage laws struck down by federal
courts might seek to reinstate prohibitions on gay and lesbian unions.
Questions also could be raised about the validity of some same-sex
weddings. Many of these problems would be of the Supreme Court's own
making.
___
WHY IS THAT?
From
October to January, the justices first rejected appeals from states
seeking to preserve their marriage bans, then allowed court rulings to
take effect even as other states appealed those decisions. The result is
that the court essentially allowed the number of states with same-sex
marriage to double.
___
WHERE IS SAME-SEX MARRIAGE LEGAL?
Same-sex
couples can marry in 36 states, the District of Columbia and parts of
Missouri. More than 500 marriage licenses were issued to same-sex
couples in Alabama this year after a federal court struck down the
state's ban. But probate judges have not issued any more licenses to gay
and lesbian couples since the Alabama Supreme Court ordered a halt to
same-sex unions in early March.
Gay
and lesbian couples may not marry in Alabama, Arkansas, Georgia,
Kentucky, Louisiana, Michigan, Mississippi, most of Missouri, Nebraska,
North Dakota, Ohio, South Dakota, Tennessee and Texas.
___
HOW MANY MARRIED SAME-SEX COUPLES ARE THERE IN THE U.S.?
Gary
Gates, an expert at UCLA's Williams Institute on the demography of gays
and lesbians in the U.S., estimated that there were 350,000 married
same-sex couples as of February. Gates relied on Gallup Inc. survey data
and Census Bureau information to arrive at his estimate. That's just
0.3 percent of the nation's 242 million adults, Gates said. Almost as
many same-sex couples are unmarried, Gates said.
___
WHAT ARE THE NEXT ISSUES FACING GAY RIGHTS?
One
fight in the news this year is over efforts to carve out religious
exemptions for people and institutions that object to same-sex marriage.
It is clear that churches do not have to marry same-sex couples if
doing so violates their religious tenets, but what about county clerks?
Can photographers refuse to shoot same-sex weddings? Can bakers decline
to bake a cake for two men? Civil rights groups say they will continue
pressing for other protections from discrimination against LGBT people
in employment and housing, among other areas. Even if same-sex couples
win the right to marry everywhere, people still can be fired because of
their sexual orientation in more than half the states.
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