Implications of Doubt: the High Court’s Struggle with Gay Marriage

Wherever a person’s political affiliations, viewpoints, or opinions may fall, there is likely one overarching factor on which he or she can agree with someone holding an opposing viewpoint.  That bridge over what may seem to be a chasm in between two people can be summed up by one word: consistency.  The American people have come to expect a certain degree of certainty when it comes to judicial decisions and this is no less true for our nation’s highest court.  While it is true that some may occasionally rail against “activist judges,” court decisions for the most part are merely extensions and affirmations of an already existing body of law.  The Supreme Court typically only gets involved in cases when the case law begins to diverge, which happens most often on cases dealing with highly contentious issues or issues where there is little “groundwork” already completed.

What happens, then, in cases like the gay marriage decisions currently pending with the Court?  Knowing the potential impact of the Court’s decision is key to not only understanding how the Court thinks, but also how its decision will shape the future of jurisprudence in the United States.

Ruling in favor of gay marriage

Cases from four states are currently slated for decisions by the end of June; namely, Kentucky, Michigan, Ohio, and Tennessee.  If the Court rules in favor of same-sex marriage, the couples who have already been married would see little immediate or dramatic change to their situation and could begin planning for their married futures.  What rights were conveyed by multiple documents — i.e. power of attorney documents, trusts, living wills — would now be provided by the current state of the law governing married couples.  It would also be likely that same-sex married couples could live their lives in the same manner as all married couples, including the ability to move to any state and have their marriage (and all the rights that come with it) recognized.  States that have had their anti-gay marriage laws overturned would be required to recognize same-sex marriage, but since the framework of laws governing married couples has been in place since our country’s history, the legislative “shuffle” would be minimal.

Ruling against gay marriage

If, on the other hand, the Court chooses not to uphold the right of same-sex couples to be married, the fallout will very likely include legal confusion over the rights of those couples who have already been married and a spike in lawsuits in states whose anti-gay marriage laws would snap back into effect.  Policies and procedures governing married couples would need to be amended to include “carve-out” provisions for same-sex couples who were married in another state.  Such a shift could lead to a division among the states along the lines of “pro-marriage” and “anti-marriage.”  In this scenario, it is possible that a couple married in one state will not be married if they relocated to a state that does not recognize same-sex marriage.  In the time it would take them to drive across a state line, they could lose the right to inheritance tax exemptions and the right to visit their ‘spouse’ in a restricted area of a hospital, among others.

In issues involving topics such as gay marriage, which have proponents and detractors on both sides, it is a good thing that our law allows for a single Court to make a decision that all other courts must follow.  While we wait for these particular decisions to be revealed, the ULC CASE LAW will continue our mission of reviewing and analyzing court decisions that have any potential impact on the rights as guaranteed to us by the Constitution.

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