What happens if SCOTUS does not uphold marriage equality?

Nothing good, that’s for sure.


Gay and lesbian couples could face legal chaos if the Supreme Court rules against same-sex marriage in the next few weeks.

Same-sex weddings could come to a halt in many states, depending on a confusing mix of lower-court decisions and the sometimes-contradictory views of state and local officials.

Among the 36 states in which same-sex couples can now marry are 20 in which federal judges invoked the Constitution to strike down marriage bans.

Those rulings would be in conflict with the nation’s highest court if the justices uphold the power of states to limit marriage to heterosexual couples. A decision is expected by late June in cases from Kentucky, Michigan, Ohio and Tennessee.

Top officials in some states, including California, seem determined to allow gay and lesbian couples to continue to marry no matter how the court decision comes out. But some county clerks, who actually issue marriage licenses, might not go along, experts said.

In other states, a high court ruling in favor of state bans would serve to prohibit any more such unions, but also could give rise to new efforts to repeal marriage bans through the legislature or the ballot.

The scenario may be unlikely, given the Supreme Court’s role in allowing those lower court rulings to take effect before the justices themselves decided the issue. But if the court doesn’t endorse same-sex marriage nationwide, “it would be chaos,” said Howard Wasserman, a Florida International University law professor.

Marriages already on the books probably are safe, said several scholars and civil liberties lawyers. “There’s a very strong likelihood these marriages would have to be respected, no matter what,” said Christopher Stoll, senior staff attorney with the National Center for Lesbian Rights.

Gay and lesbian couples could continue to marry in the 16 states that have same-sex marriage because of state court rulings, acts of the legislature or statewide votes.

Similarly, the 14 states that prohibit same-sex couples from marrying, including the four directly involved in the Supreme Court cases, could continue enforcing their state marriage laws. That would include Alabama, where a federal judge has struck down the state’s constitutional ban on same-sex marriage, but put her ruling on hold pending the high court’s decision.

Of the remaining 20 states, any that fought unsuccessfully to preserve marriage bans would not have much trouble resuming enforcement. “That state can immediately start saying we’re going to deny marriage licenses to same-sex couples going forward,” said Cornell University law professor Michael Dorf.

That’s exactly what would happen here in Texas, with the main difference being that the stay on the original ruling has been in place all along, so with the exception of that one couple in Travis County, no one’s existing marriage would be any more threatened or in limbo than it is today. In this scenario, barring a subsequent SCOTUS ruling that changed course, we would need to repeal the 2005 anti-same-sex-marriage Constitutional amendment. That would require a two thirds vote in both the House and the Senate, followed by a majority vote of the people. I don’t see that happening any time soon, possibly not in my lifetime, since a one-third minority in either chamber would be enough to derail the effort. I have always believed that’s why opponents of equality pushed the Constitutional amendment in the first place, when there was already a state-level Defense of Marriage Act in place: It guaranteed that said state DOMA could not be repealed by a simple majority vote in the Lege.

So yeah, this would be really bad. The good news is that the Court’s actions up till now, primarily in allowing lower court rulings that lifted stays of rulings in favor of equality to stand without hearing the appeals, strongly suggest they are going to rule in favor. But I suppose you never know until it happens, so it’s worthwhile to reflect on what reality would be if they somehow do not.

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One Response to What happens if SCOTUS does not uphold marriage equality?

  1. John says:

    If the court doesn’t uphold marriage equality, I think it will also have repercussions in the states that have laws against equal marriage in terms of business. If you are Apple or HP or Microsoft, how do you ask a married employee to take a position in Austin or Houston when the move will essentially dissolve their marriage in California or Washington? If you’re considering where to build a new facility, do you seriously consider a state where some of your emoloyees will face legally mandated discrimination? In addition, I think there will be serious dinner table discussions for a lot of us about our long term plans – with no remedy from the Supreme Court or the legislature in sight, is it really worth staying in Texas? My company, for example, has offices in Seattle; maybe considering a move there makes more sense if we can’t be equal citizens at home. I think this ruling could have a real impact on the ability of states like Texas to attract businesses and people.

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