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Do Same-sex Couples Have a Constitutional Right to Get Married and Stay Married?
A dozen years ago, there was not a state in the nation where same-sex partners could legally marry. Since then, same-sex marriage has been legalized, either by court ruling, legislation or referendum, in 37 of the 50 states and the District of Columbia. (In one of the 37 states, Alabama, the state's highest court issued an order on March 3, 2015, prohibiting the issuance of marriage licenses to same-sex couples. The order came after a federal district court struck down Alabama's ban on gay marriage and more than 500 same-sex couples were married in the state.) Now, the U.S. Supreme Court is poised to decide whether any state may prohibit same-sex marriages ' or decline to recognize such marriages ' without running afoul of the federal Constitution. A decision is expected late this month.
Last October, as it opened its current Term, the Supreme Court declined to hear any of the cases, stemming from the Fourth, Seventh and Tenth Circuits, in which state bans on same-sex marriage were held unconstitutional. The following day, the Ninth Circuit joined its sister courts and invalidated the state bans on same-sex marriage that were before it. Reacting to questions about the high Court's denial of certiorari, Justice Ruth Bader Ginsberg remarked that there was “no crying need” for the Court to weigh in on the same-sex marriage issue in the absence of a split among the circuits. (For a discussion of those cases and Justice Ginsberg's remarks, see F. Gulino, “No Need to Rush”: As State Bans on Same-sex Marriage Continue to Fall, the Supreme Court Dodges the Issue (for Now), The Matrimonial Strategist , Nov. 2014 (online version), http://bit.ly/1PdHhx7.) Such a circuit split was just around the corner.
In a 2-1 decision handed down on Nov. 6, 2014, the Sixth Circuit became the first federal appeals court to uphold laws banning same-sex marriage (and the recognition of such marriages) in cases from Kentucky, Michigan, Ohio and Tennessee. The ruling created precisely the kind of circuit split that usually attracts the interest of the high Court, and this was no exception: Early in the new year, the Justices agreed to hear those cases, to determine whether states have the power to ban same-sex marriage or deny recognition to such marriages entered legally in other jurisdictions. DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), cert. granted, 83 U.S.L.W. 3315 (U.S. Jan. 16, 2015) (No. 14-571).
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