As the Supreme Court gears up to hear arguments regarding gay marriage, people have been lining up outside the courthouse steps since last Friday, hoping to gain admittance to the historic event transpiring today.
By the end of this Supreme Court term, same-sex couples will either be able to wed in all 50 states or gay marriage bans can be reinstituted in many of the 36 states who already allow for the nuptials.
The Supreme Court arguments being heard on Tuesday will focus on two main questions; Whether bans on gay marriage are constitutional and if they are, whether the states with bans may refuse to recognize out-of-state marriages performed where they are legal. The court has scheduled a 2 1/2 hour period for arguments, of which the transcripts will be made available via online.
There are four states that have prepared to defend their bans on gay marriages — Michigan, Ohio, Tennessee and Kentucky. Each of those states have won their cases in the lower courts, and since other appeals courts have thrown out the bans enacted in other states, the Supreme Court has been directed to resolve this conflict.
This is the culmination of a decades-long legal battle in the court system as well as at the state legislative level and the ballot box. Public opinions vary on this soon-to-be set precedent, but they are rapidly changing, more so on this particular topic than any other social issue in recent history.
Public opinion polls taken in 1996 reflect on average, only 27 percent of the public wanted legalization, but this year despite resistance from many states, opinions of support have risen to well over 50 percent.
The Justices must determine whether states’ rights take precedence over the fundamental right to marry, pitting the traditional definition of marriage against a more modern version as well as determining whether majority right will trump minority rights.
As they sit down at their benches today, they will hear arguments based on consolidated cases pertaining to 12 couples and two widowers who range from nurses, teachers, veterinarians, an Army sergeant and businessmen and women. Many of these people consider themselves “accidental activists” simply because they filed lawsuits against state rulings, because they affected their lives personally. For instance, a case heard in Michigan involves two women; Jayne Rowse and April DeBoer, who have adopted four children, but because the state does not recognize same-sex marriages and does not allow same-sex couples to adopt, they each had to adopt two of the children.
“We have a marriage,” says DeBoer. “We just don’t have a piece of paper that legally binds us to each other.”
The couple decided after a near-miss vehicular accident one snowy night, that wills and trusts should be put in place to protect their children if something were to happen to them. After getting their legal paperwork in place, they found there was one thing they couldn’t provide for; custody of the children should one of them die.
“A judge could award that child to someone else,” says Rowse, “effectively making them a legal stranger to the child they’ve helped raise since birth.” This led to their legal battle of challenging the state adoption laws and subsequently the challenge on gay marriage rights.
As with many of those testifying in favor of gay marriage rights today, have adopted or have had children by artificial means, were married in states that recognized their unions, but have moved to states that still do not recognize their unions.
Arguments against the rights they seek are not limited to Michigan Attorney General Bill Schuette who defends his state’s ban as an example of democratic rule. “Who decides: the courts or the voters?” Schuette asks, rhetorically. “There are 2.7 million people — voters — who made this decision.”
Gay-marriage advocate Mary Bonauto intends to counter with statements that she contends will prove that this country should not put the fundamental constitutional rights of minorities to a vote. “This is not about self-government or persuading voters,” argues Bonauto. “It’s about the Constitution and whether, constitutionally, same-sex couples can be denied the right to marry that all other Americans enjoy.”
Arguing against her Tuesday will be lawyer John Bursch, representing Michigan and the other states with the arduous task of convincing the justices that Michigan has the rational justification for continuing their ban on gay marriages. “It’s really not possible to say that the marriage definition Michigan has had since 1805, when it was still a territory before statehood, has all this time been irrational,” Bursch says.
Bonauto replies that it doesn’t really matter what people thought at the time the Constitution was written because the Fourteenth Amendment, adopted after the Civil War, guarantees “equal protection of the laws.” adding, “And this is a court that has recognized time and again that we have to look at current conditions in deciding what equality means,”
The Supreme Court has made judgements repeatedly stating that marriage is a fundamental right of which states cannot abridge without real justification, ruling that prisoners as well as those too poor to pay child support have the right to marry. Most notably is the 1967 ruling in which the court struck down the state bans on interracial marriages.
Regardless of your own personal opinions on whether marriage is a “right or a privilege” or whether states rights trump those of individual rights, the hearing today may very well prove to be a historical landmark decision in constitutional principles.