DENVER — The U.S. Supreme Court today is hearing arguments in a case that will push the most-recent chapter in the breakneck story of American gay marriage toward a major conclusion. Coloradans on all sides of the issue are watching for clues on what to expect here in the Centennial State, where over the last 11 years same-sex marriage was banned by voters, then side-stepped with civil unions, then caught up in state court, then de-facto legalized by a federal court, and then made real on the ground in the offices of inspired and determined county clerks.
The Supreme Court justices likely will hand down a ruling in the Obergefell v. Hodges case in June. (Audio of arguments is being loaded here in stages as they take place.) The justices are considering two questions: First, must all states issue marriage licenses to same-sex couples, and second, if they don’t have to, must they recognize those issued by other states?
The high-court case consolidates four cases heard in the 6th U.S. Circuit Court of Appeals, a conservative jurisdiction that stretches from the Canadian border with Michigan through Midwestern Ohio and into Old South Kentucky and Tennessee.
Most observers believe the court will decide in favor of marriage equality. Rulings from the bench have piled up along that line slowly for years, and Justice Anthony Kennedy, the swing vote on the court, has consistently sided with the liberal wing on gay rights and marriage equality. Kennedy has found time and again that sexuality is not just about human conduct, but that it is also tied innately to identity. Legal analysts say the Obergefell case turns on just that point. That’s because, according to the law, Americans can be treated differently based on their conduct but not based on who they are.
Coloradans will be most familiar with Kennedy’s decision in Romer v. Evans, named for Roy Romer, who was governor in 1992 when state voters approved anti-gay Amendment 2, which outlawed any local or state provisions aimed at protecting gay people from discrimination. Kennedy wrote the majority opinion, which found that the amendment unconstitutionally targeted gay people based on animosity and that it served no legitimate governmental purpose.
If the court rules in favor of marriage equality this summer, there will be little effect on the ground in Colorado.
More than 1,500 same-sex couples have tied the knot here since October, when the Supreme Court refused to issue a stay of a Denver-based 10th Circuit Court ruling outlawing gay-marriage bans in the six Western states under its jurisdiction.
But what if the court rules against marriage equality?
John McHugh is one of the lawyers who argued in favor of gay marriage in the Brinkman v. Colorado case that last July struck down the state’s 2006 ban on gay marriage. It was a big win for marriage equality at the time, but it was overshadowed by the larger 10th Circuit federal ruling.
Should the U.S. Supreme Court rule against gay marriage this summer, however, Brinkman may act as the law in Colorado, McHugh explained to me yesterday.
At the time, then-Attorney General John Suthers planned to appeal the ruling delivered by Adams County District Judge Scott Crabtree, but then came a cascade of events that altered his plan. The Tenth Circuit knocked down gay-marriage bans. Colorado county clerks began issuing licenses to gay couples. And the U.S. Supreme Court decided not to stay the 10th Circuit ruling. Suthers read the writing on the wall and dropped the state appeal.
So, Crabtree’s strong ruling in favor of marriage equality still stands in Colorado.
And the answer to what will happen here if the Supreme Court rules against marriage equality is… murky.
Clear as mud
“Yes, so, no, it’s not entirely clear,” said McHugh.
He explained that the jigsaw puzzle of rulings that led Colorado to lift its marriage ban will have to be taken back up. But he added that it seems highly unlikely that Colorado’s ban could automatically snap back into effect in the aftermath of a Supreme Court ruling this summer.
“It’s in no way a foregone conclusion that we would lose marriage here,” he said. “[A ruling against gay marriage] probably wouldn’t void any marriages here either. But it would provide the state with the ability to reinvigorate the marriage ban, at least technically.”
But McHugh believes it would take action on the part of the state to reinstitute the ban, and that’s a big deal.
The attorney general would have to appeal Brinkman and, in effect, embark on re-making the case for a marriage ban in a vastly different legal and cultural landscape.
“Views now on this matter are wildly different than they were just a year ago, much less in in 2006 [when the ban passed],” McHugh said.
“I can imagine a couple of county clerks at least — Hillary Hall in Boulder and Debra Johnson in Denver — resisting such a change,” he said laughing. “They would force the issue, force the state to take action to make them stop issuing licenses.”
Attorney General Cynthia Coffman is a Republican. She was chief deputy in the same office under Suthers and fully supported his long-defense of the state’s marriage ban. In running for election last year to replace him, however, she seemed at once determined to defend the ban and also aware that public opinion had outraced the ten-year-old amendment.
“Anything is possible, we know, with a Supreme Court decision,” she told Colorado Public Radio. “It could be that we would be having the debate again at the state level. If so, I think the appropriate policy makers and voters will be engaged in that and once again we’ll be there to make the legal decisions about enforcing the law and upholding the constitution…
“I think if Coloradans had the opportunity to vote again on a definition of marriage in their constitution, they would most likely, based on polling I’ve seen, want to legalize gay marriage.”
Kennedy and Roberts
Seven Supreme Court justices have staked out clear positions on gay marriage. The nation will be watching Kennedy but also Chief Justice John Roberts.
“The first question is which Kennedy will come to the bench,” said McHugh. “The state’s rights Kennedy or the individual liberty Kennedy?”
The second main question, he said, is whether Roberts will be looking at the case with an eye toward the legacy of his court.
“This is the biggest civil rights issue of our era,” said McHugh. “If Roberts votes against marriage equality, then Kennedy would likely be the one to put his stamp on the issue and write the winning opinion. So, Roberts might instead choose to come along with the majority opinion and vote in favor of marriage equality. Then he would be the one writing the opinion, and he could set parameters on it, give it the shape he chooses.”
There are roughly 1,100 rights granted by marriage on the federal level and hundreds on the state level. Same-sex marriage is now legal in 36 states. Marriage bans have been struck down in 22 states.