Once And For All?

The Supreme Court could extend marriage equality to all 50 states.

The Supreme Court Could Extend Marriage Equality To All 50 States

Tomorrow, the Supreme Court will hear oral arguments for the same-sex marriage case Obergefell v. Hodges. The case combines challenges from four states—Ohio, Kentucky, Michigan and Tennessee—that have laws that either ban same-sex marriage, fail to recognize same-sex marriages from other states, or both. The court is widely expected to rule in favor of same sex marriage when it hands down its decision in late June, but just as important as the court’s final decision is the question of how the opinion is drafted.

Think Progress has put together a detailed explanation of four things to watch for in tomorrow’s oral arguments that could influence how LGBT rights continue to be defined after this case is decided.

  • Justice Kennedy: Nearly every victory for lesbian, gay, and bisexual people that the court has ever handed down has been written by Justice Kennedy, so is the justice to watch tomorrow. Supporters of marriage equality hope that he will want to prevent upheaval in states that have already allowed same-sex marriage and therefore will rule in their favor, while opponents will try to appeal to federalism, another of his favorite causes.
  • Heightened Scrutiny: This is the idea that groups that have historically faced discrimination enjoy heightened protection under the constitution. With so many signals that the court will extend marriage equality to all 50 states, it seems logical to also bring sexual orientation law under the rest of the Court’s equal protection doctrine, which would give lesbian, gay, and bisexual Americans much more certain protection beyond marriage.
  • Recognition: This case looks at two distinct legal questions: first, whether the Constitution requires states to recognize same-sex marriage on the same terms as opposite-sex couples; and second, whether states must recognize legal same-sex marriages performed in other states. It would be difficult to craft an argument that allows same-sex marriage but does not require states to recognize out-of-state marriages or vice-versa, but given the court’s historic slow movement on LGBT rights, there is a chance some justices will look for a way to do that.
  • “Religious Liberty:” While “religious liberty” laws that legally justify discrimination against the LGBT community are not specifically at issue in this case, there is a chance that Justice Alito, the Court’s most conservative justice, will try to carve out special rights for people with religious objections to LGBT Americans.

Meanwhile, as the court of public opinion seems increasingly settled on the issue, LGBT rights are becoming more and more of a problem for Republicans who are tripping over how to satisfy extreme elements in their base and hold on to discriminatory, out-of-date, and unpopular opinions. Ted Cruz, for example, said he strictly opposes gay marriage, but would be comfortable if his daughter were gay. Marco Rubio said he might attend a same-sex wedding, while Scott Walker actually did attend a same-sex wedding reception–but not the wedding itself. (There’s a really simple solution here, guys.)

BOTTOM LINE: The overwhelming positivity surrounding tomorrow’s oral arguments are a reminder of how far we have come on marriage equality in such a short time. But this potentially historic decision is by no means the end of the road for LGBT equality. Even with a Supreme Court decision in favor of marriage equality, same-sex couples in 28 states will be able to legally marry and then be legally fired from their job simply for doing so. We must not forget how much work there is still left to do to ensure that comprehensive non-discrimination laws are put in place to prohibit anti-LGBT discrimination nationwide and provide LGBT people and their families with the same protections currently afforded to other Americans.

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