The Freedom to Marry at the United States Supreme Court

This fall, same-sex couples and legal teams plan to urge the United States Supreme Court to consider one or a combination of cases that seek to strike down state laws that deny the freedom to marry. The plaintiffs are seeking review of an out-of-step decision from the 6th Circuit Court of Appeals upholding marriage discrimination.  (Updated 11/18/14)

THE CASES
POLLING
SCHEDULE
WHAT YOU NEED TO KNOW:

SCOTUS CONFERENCES:

This winter, same-sex couples and legal teams will ask the United States Supreme Court to grant certiorari in one or more legal cases seeking the freedom to marry - that is, they are seeking review of a lower court decision.

Here is the schedule for this fall's conferences:

  • Friday, 12/5: Cases distributed 11/19
  • Friday, 12/12: Cases distributed 11/25
  • Friday, 1/9: Cases distributed 12/3
  • Friday, 1/16: Cases distributed 12/30
  • Friday, 1/23: Cases distributed 1/7

Four Justices must vote for certiorari in order for a case to receive review. If certiorari is granted in one or more of the marriage petitions this fall, the case will likely be scheduled for an oral argument in the spring of 2015, with a decision expected by late June. 

In the meantime, marriage supporters must continue do everything we can to creating the climate that will maximize our chances of winning no matter which case gets to the Supreme Court and when. 

Previously this year, on October 6, 2014, the U.S. Supreme Court denied review in all five cases where federal appellate courts had found in favor of the freedom to marry, opening the door for the freedom to marry to take effect in all five states, plus the six other non-marriage states within those circuits. 

It is vital that marriage supporters continue sending the message that all of America is ready for the freedom to marry. It is our responsibility to help the courts get the country where the country is ready for the courts to get us: on the right side of history, with the freedom to marry for all.

POLLING on majority support for the freedom to marry:

A National Supermajority:

A February 2014 poll from The Washington Post-ABC News found that 59% of Americans support the freedom to marry for same-sex couples. For the first time, the poll showed that there is a majority support for marriage in every region of the country, as well as plurality support in every age group.

Bipartisan Momentum:

That same poll from The Washington Post/ABC News shows that support for the freedom to marry crosses party lines, with 40% of Republicans favoring marriage for same-sex couples, with 23% strongly supportive. A 2013 poll tracks support among Republicans and GOP-leaning Independents ages 18-49 at 52%.

Coast-to-Coast Support:

The poll also tracked unprecedented levels of support for marriage in every region of the country, with support at 59% in the West, 66% in the Midwest, 68% in the Northeast, and a solid 50% in the South.

The SUPREME COURT

The national strategy to win marriage for same-sex couples has always focused on a final victory at the U.S. Supreme Court or in federal appellate courts. In the past year, an explosion of marriage litigation - with 52 rulings in favor of marriage for same-sex couples - has clearly demonstrated that the country is ready for the freedom to marry.

The freedom to marry has been steadily winning, from the courts of public opinion, to four major ballot box victories in 2012, to even the U.S. Supreme Court allowing the freedom to marry to take effect in effectively 16 states on October 6, 2014, when it denied certiorari in 5 marriage cases. In every instance, the argument that denying marriage to same-sex couples is unconstitutional and unfair, violating the American values of freedom, liberty and respect, has won over voters, opinion leaders and courts across the country.

Couples should not have to fight for marriages state by state in the remaining 15 states that continue to discriminate. While same-sex couples can now or will soon be able to marry in 35 states and the District of Columbia, that freedom is denied in 15 other states.

Every day of denial is a day where American families are harmed - and it's time for the Supreme Court to put an end to this injustice. Now, with a ruling from the 6th Circuit Court of Appeals upholding marriage discrimination issued on November 6, 2014, many court observers believe the Supreme Court will take one or several of these cases this term and decide this question for the entire country once and for all.

The Cases

BOURKE/LOVE v. Beshear

Bourke District Court Victory 2/12/14 • Love District Court Victory 7/1/14 

On Feb. 12, a federal judge ruled in Bourke v. Beshear that Kentucky must respect the marriages of same-sex couples legally performed in other states. The lawsuit was brought by private firms Clay Daniel Walton & Adams and Fauver Law Office

Almost immediately, Kentucky Attorney General Jack Conway announced he would not defend marriage discrimination in his state, yet on March 18, KY Gov. Beshear filed an appeal with private counsel. 

Shortly after the ruling, two unmarried same-sex couples in Kentucky were granted a motion to intervene in the case, and on July 1, under the new name Love v. Beshear, the same federal judge ruled that Kentucky's marriage ban is altogether unconstitutional. 

RESOURCES, Bourke v. Beshear:

RESOURCES, Love v. Beshear:

obergefell v. Hodges & Henry v. Hodges 

Obergefell District Court Victory 12/23/13 • Henry District Court Victory 4/14/14

On Dec. 23, a federal judge ruled in Obergefell v. Wymyslo (now Obergefell v. Hodgesthat the state of Ohio must respect the marriages of same-sex couples legally performed in other states for the purpose of listing surviving spouses on death certificates. In April 2014, in a separate federal case, Henry v. Himes (now Henry v. Hodges) the same judge ruled that Ohio must respect all married same-sex couples who wed in other states for all state purposes. Both cases were brought by private firms Gerhardstein & Branch Co., LPA and Newman & Meeks Co., LPA, with the ACLU joining Obergefell and Lambda Legal joining Henry.

RESOURCES, Obergefell v. Hodges:

RESOURCES, Henry v. Hodges:

DeBoer v. Snyder

District Court Victory 3/21

On March 21, a federal judge ruled in favor of the freedom to marry in DeBoer v. Snyder, striking down the marriage ban for same-sex couples. For the next 24 hours, more than 300 same-sex couples across the state received marriage licenses in Michigan until the 6th Circuit Court of Appeals granted a stay in the decision. 

The ruling followed a landmark, two-week trial on the freedom to marry where equality supporters and opponents presented evidence and witnesses on marriage for same-sex couples. In his decision, Judge Friedman strongly dismissed testimony from the defendants' key witness, Mark Regnerus, author of the so-called "New Family Structures Study." The judge wrote that Regnerus' study - which has been repeatedly refuted by leading parenting and psychological organizations - was "entirely unbelievable and not worthy of serious consideration."

RESOURCES, DeBoer v. Snyder:

Tanco v. Haslam

District Court Victory 3/14

On March 14, a federal judge ordered state officials to respect the marriages of three same-sex couples whose lawsuit, Tanco v. Haslam, challenges the state’s marriage ban. The couples are represented by the National Center for Lesbian Rights. The judge ruled that since the plaintiffs were likely to prevail in their case, they should be respected as married as the lawsuit proceeds.

The state of Tennessee appealed the ruling to the 6th Circuit Court of Appeals, requesting stay on the decision. Although Judge Trauger initially denied the motion, in April, the 6th Circuit Court of Appeals granted the request to put the ruling on hold as it proceeds.

RESOURCES, Tanco v. Haslam: