Same-Sex Marriage and the Supreme Court: What Happens If We Lose?

What if

 

WaPo talks about the worst possible case scenarios :

In deep-red states such as Oklahoma, Utah and Kansas, officials probably would waste no time trying to put a stop to same-sex marriages. Groups may attempt to have existing marriages invalidated or may press state officials not to allow state benefits for gay couples who have wed. Arizona state Sen. Steve Smith, a Republican from Maricopa County, predicted an immediate push to reinstate a constitutional amendment, approved in a 2008 voter referendum, defining marriage as between a man and a woman. “I don’t know how much clearer the will of the people can be expressed than by a vote to that effect,” he said.

In states such as Oregon and New Jersey, where the political climate has become more favorable to gay marriage in recent years, there probably would be a scramble to enact legislation to allow same-sex marriages. But the process could be more drawn out in places such as California, whose prohibition on same-sex marriage was part of the state constitution. If that ban was reinstated as a result of a Supreme Court decision, a voter referendum would be needed to get rid of it.

Elsewhere, the battles could be more pitched. In Virginia and Pennsylvania, for instance, freshly minted Democratic governors may resist attempts to revert to old laws, potentially clashing with conservative state lawmakers. And Republican leaders in Florida and elsewhere could find themselves squeezed between their conservative bases and gay rights forces that would label them bigots.

The biggest question: What would become of the thousands of couples who got married in the 22 states during the brief period same-sex marriage was allowed? James Esseks, an attorney for the American Civil Liberties Union, pointed to several recent cases involving same-sex marriage that suggest courts generally think that “once you’re married, you’re married.” But some experts think it could take years of litigation, and perhaps another go before the Supreme Court, to clarify that.

 

Now before everyone gets rattled by what happened today.  Please remember that the Supreme Court could have stopped, or postponed, most of the gay marriage bans from falling if they had chosen to.  But they didn’t.  Also SCOTUS would have never taken up this issue if the 6th Circuit didn’t vote against its cases.  Our occupants wanted this because this really was their last best chance to thwart us, but given how Kennedy voted with us on the DOMA 2 question in the Windsor case, it goes against all precedence to vote the other way this time.

IMO today’s hearing was judicial theater at its best.  There was much questioning about the “definition” of marriage.  But not much about the “constitutionality” of it in terms of same-sex marriage. And that is where the real verdict lays.

 

 

 

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Will Kohler

Will Kohler is a noted LGBT historian, writer, blogger and owner of Back2Stonewall.com. A longtime gay activist, Will fought on the front lines of the AIDS epidemic with ACT-UP and continues fighting today for LGBT acceptance and full equality. Will’s work has been referenced in notable media venues as MSNBC and BBC News, The Washington Post, The Advocate, The Daily Beast, Hollywood Reporter, Raw Story, and The Huffington Post

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