In The News

To be plain, the answers on same-sex marriage are unclear.

As we wait for the inimitable Supreme Court justices to finish their debates and issue their collective — or perhaps not so collective, as the case may end up — opinion in the matter of same-sex marriage as adjudicated in the Sixth Circuit: Our clients, April DeBoer and and Jayne Rowse, have gone back about the business of raising their children. They raise their children, and work their jobs; they go to the grocery store, and to the park, and they wait. They wait alongside so many hundreds of other families just like theirs, for a decision that could change their lives forever.

They wait. And we wait. And the nation waits.

But what will the answer be?

The attorneys at Nessel & Kessel, and those who represent the other plaintiffs in this all-important case can tell you what we hope the answer will be, but when these nine Americans sworn to uphold the Constitution get involved, it’s never quite clear.

For a bit more guidance, we turn to SCOTUSblog:

No clear answers on same-sex marriage: In Plain English

The following excerpt was originally published on SCOTUSblog on April 28, 2015.

It could turn out to be a nailbiter. After two-and-a-half hours of oral argument in the same-sex marriage cases, it was not clear where Justice Anthony Kennedy — and therefore the rest of the Court — was headed. Let’s talk about the oral argument in Plain English.

The arguments started with what many people refer to as the “marriage question” — whether the Constitution requires states to allow same-sex marriages. Representing the same-sex couples challenging the state bans, Mary Bonauto ran into tough questions from Chief Justice John Roberts and Justices Samuel Alito and Antonin Scalia. Roberts suggested that adopting Bonauto’s position would “redefine” marriage, adding that “every definition I looked up until about a dozen years ago” defined marriage as a union between a man and a woman. The plaintiffs could not have been encouraged when Justice Anthony Kennedy, who is probably their best bet to join the Court’s more liberal Justices to strike down the bans, echoed this idea. He told Bonauto that the traditional definition of marriage has been around for millennia, but it has only been a little over a decade since the Court held that Texas could not criminalize sex between two consenting adults of the same sex. That may be a long time for scholars, he pointed out, but it isn’t very long compared to the big picture, and “it’s very difficult for the Court to say we know better.

[…] Arguing on behalf of the federal government in support of the plaintiffs, U.S. Solicitor General Don Verrilli faced a similar barrage of questions from the Court’s more conservative Justices during his fifteen minutes at the lectern. In particular, Justice Kennedy reminded Verrilli that in an earlier case, the Court had indicated that it should define a “fundamental right” in “its narrowest terms” – a precedent that would not necessarily bode well for the plaintiffs. What, he asked Verrilli, should the Court do about that rule in this case? As he had during Bonauto’s argument, Justice Scalia then suggested that the Court should leave the issue for “the people” to decide, but Verrilli countered in his final remarks that the plaintiffs in the case deserve to have their constitutional rights now, without being required to wait to gain public support.

[…] [John Bursch, the former solicitor general of Michigan] spent most of his oral argument time sparring with the Court’s four more liberal Justices — Breyer, Ginsburg, Kagan, and Sotomayor — about the states’ rationale for prohibiting same-sex marriage. Bursch maintained that the states were not limiting marriage to opposite-sex couples because they wanted to confer second-class status on same-sex couples, but because of society’s vision of marriage as an institution centered around having children and encouraging parents to stay married and bonded to their children. The idea that marriage is about love and commitment is important, he said, but the state doesn’t have any interest in that idea. All four of the more liberal Justices seemed highly skeptical of his justifications. How, Justice Ginsburg asked, does allowing same-sex marriage take anything away from opposite-sex couples? Being married, Justice Sotomayor pointed out, doesn’t stop parents from getting divorced and abandoning their children. Justice Breyer chimed in, observing that a “very high percentage” of opposite-sex couples don’t have children, while a similarly high percentage of same-sex couples do.

So where does this leave us?

It leaves us to wait, but we won’t have to wait long.

A decision from the Supreme Court of the United States is expected before its recess in June.

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