By Richard Hack

In a stunning turn of events, and after years of declining to rule on the issue of same-sex marriage, the Supreme Court last Friday agreed to rule on the power of the states to ban same-sex marriages and to refuse to recognize such marriages performed in another state.

While just how the court will rule is always a question mark, in this particular instance the Supreme Court telegraphed many of its talking points in an unusual move: It reframed the questions presented in four different cases on the issue, and grouped them all together for the purpose of clarity.

The first question being considered is “Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?”

To understand the question necessitates knowledge of the 14th Amendment, largely unknown to most outside of legal circles. The amendment was ratified on July 9, 1868, not long after the Civil War ended, and was originally intended to secure the rights of slaves who were emancipated as a result of the Civil Rights Ac of 1868. In part, the Amendment reads: 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.

The 14th Amendment essentially provides a pot from which all other rights grow and strives to guarantee that all citizens are treated alike. Reduced to such simplistic terms, it is easy to see how the majority of law scholars are predicting that the Supreme Court must rule in favor of gay marriage.

The Court has homed in on the central issue that has been presented by the legal same-sex-marriage debate from the beginning: do state governments violate the basic principle of “equality under law” when they grant marriage licenses only to opposite-sex couples?

The states have long place restrictions on certain categories of people due to physical handicaps. No state, for instance, presently grants a driver’s license to the legally blind. Those individuals are placed in a classification subject to “heightened scrutiny.” Sexual orientation does not belong in this category any more than race or religion does.

The only escape for diehard states that persist in denying marriage rights would be to stop issuing all marriage licenses—both straight and gay—much the same as certain conservative county clerks in Florida stopped performing all courthouse weddings.

The second question the Supreme Court will be considering is “Does the Fourteenth 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?”

While technically the court could say “yes” to one question and “no” to the other, effectively splitting its vote down a middle path, the likelihood of such a vote is low.
Our clearest clue as to the most likely decision the Supreme Court will reach before this coming July can be found in its 1967 ruling against the state of Virginia when it decided in favor of mixed race couples to have the ability to marry. Despite the fact that it was less than 50 years ago, it now seems like such a basic right as to be inalienable.

In making that ruling, the Supreme Court said, “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” The majority continued, “To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law.” Replace “racial classifications” with “sexual orientation” and we have our answer.

Let the wedding bells toll.

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