Two Cases That Will Decide The Fate Of Gay Marriages In The US

The same-sex marriage debate reaches the Supreme Court of the United States today.

WrittenBy:Vikram Johri
Date:
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Exhibit A:

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On July 19, 2013, James Obergefell filed a lawsuit in the US Southern District of Ohio, demanding that his marriage to his partner John Arthur, solemnised on July 11 of that year in Maryland, be recognised in his home state Ohio, a state that does not recognise same-sex marriages. John was terminally ill with Amyotrophic lateral sclerosis, or ALS, and owing to his fragile condition, their marriage had been formalised on the tarmac of the Baltimore international airport.

The petition before the Ohio court asked that James be identified as John’s husband on the latter’s death certificate, when that eventuality presented itself. In October that year, John passed away.

Exhibit B:

In 2013, Cooper Talmas-Vitale was born in Cincinnati to a birth mother who was willing to give the baby to a gay couple. Rob Talmas and Joe Vitale, who had been married for nearly two years (their vows were solemnised in New York, where they live) adopted Cooper. While the adoption papers in New York listed both men as Cooper’s fathers, the state of Ohio refused to sanctify this arrangement on Cooper’s birth certificate. As a result, Cooper does not (yet) have a birth certificate, which means he does not have a passport or social security number either.

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The US Supreme Court will begin hearing arguments in Obergefell vs Hodges today (April 28, Tuesday). That case follows from the original lawsuit that James Obergefell filed in Ohio and which has reached the US Supreme Court after a string of minor victories and defeats in the lower courts. (More on that below.)

The question before the court is whether a state is legally bound to recognise a same-sex union solemnised in another state. The court has bunched cases from other states that do not recognise same sex marriage — viz, Michigan, Kentucky and Tennessee — under the Obergefell case.

Here are the two questions the court is looking to answer:

Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

The Fourteenth Amendment to the US Constitution guarantees equal rights to all citizens. It was introduced in 1868 to recognise the legal rights of former slaves following the Civil War. If marriage is a fundamental right – as the Supreme Court has agreed it is in numerous other cases – how can that right be denied to a person on the basis of his sexual orientation? And if that denial is made, does it not violate the Constitutionally-guaranteed protections to all Americans?

Does the Fourteenth Amendment require a state to recognise a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

This follows directly from the first question. If one state recognises same sex marriage and another does not, the legal loophole so created will ensure the denial of the rights and guarantees that the Constitution assures all Americans. As Susan Sommer, director of Constitutional litigation at Lambda Legal and one of the chief lawyers on the case, said in reference to Cooper’s status: “What [his] case really shows is how when a state like Ohio discriminates against same-sex couples, that discrimination washes across the country. It’s not just a problem for Ohio and gay and lesbian people in Ohio and their children — it’s a problem right here in New York.”

While the answers to these questions may look so obvious as to make one wonder why they are even being argued in a court of law, the history of the gay rights movement, as that of discrimination against blacks or other minorities, has often been held in thrall to legalese.

That the Obergefell case has generated so much media attention and that the plaintiffs are being represented by the best legal minds in the country gives hope that the Supreme Court will finally recognise same sex marriage in all 50 US states.

Last year, the Obergefell case came up before the Sixth Circuit Court of Appeals, a federal court whose jurisdiction extends to the states – Ohio, Michigan, Kentucky and Tennessee — that do not recognise same-sex unions.

In November, the court ruled that Ohio’s ban on same sex marriage does not violate the US Constitution. Judge Sutton, in comments that reflect the Indian Supreme Court’s upholding of Section 377 in December 2013, said: “Not one of the plaintiffs’ theories … makes the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters.”

The Sixth Circuit judgement was ruled 2-1. Dissenting judge Martha Craig Daughtrey wrote: “Because the correct result is so obvious, one is tempted to speculate that the majority has purposefully taken the contrary position to create the circuit split regarding the legality of same-sex marriage that could prompt a grant of certiorari [judicial review] by the Supreme Court and an end to the uncertainty of status and the interstate chaos that the current discrepancy in state laws threatens.”

And so, the case will now be argued before the US Supreme Court. The judgement is expected to be delivered in June, one whose “correct result is so obvious” that it is hoped the issue of same sex marriage in the US will be settled once and for all.

As for us in India, we will be watching the arguments closely and hoping that when the narrative (again) shifts to India, the highest court of the land will give up its majoritarian stance and look to correct what is at heart a human rights wrong.

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