NEWS

Same-sex marriage: Everything you need to know

Kevin Grasha and Amber Hunt
Gannett Ohio
  • What are the arguments?
  • What's the schedule?
  • What are the possible outcomes?

No matter what side of the same-sex marriage debate you're on, make no mistake: What happens Tuesday inside the hallowed U.S. Supreme Court building will be historic, and two Ohio court cases are at the heart of it all.

The last time the nation's highest court considered a case specifically about states allowing same-sex marriage was in 1972, and the hearing was infamously short: In Baker v. Nelson, in which a gay couple sued for the right to marry, the justices quickly dismissed the case, agreeing with the Minnesota Supreme Court's decision that marriage was between a man and woman, end of story.

"This time we will be able to make a full argument," said Mary Bonauto, one of three lawyers who will argue in favor of same-sex marriage.

A lot has changed since 1972. The first state to allow same-sex marriage was Massachusetts in 2004; today same-sex marriage is legal in 37 states. Ohio is among the 13 states, representing less than 30 percent of the nation's population, that still ban same-sex marriage.

The current case, Obergefell v. Hodges, landed in the U.S. Supreme Court after four states fighting to uphold their same-sex marriage bans – Ohio, Kentucky, Michigan and Tennessee – successfully argued to the 6th Circuit Court of Appeals that the decision should be left up to voters.

But other federal appellate panels had overturned such bans in Idaho, Indiana, Nevada, Oklahoma, Utah, Virginia and Wisconsin. They cited the Supreme Court's 2013 decision in United States v. Windsor, which declared that the constitution's equality principles required the federal government to honor legal same-sex marriages. That split among the federal courts led the nation's high court to step in.

Both sides have been asked to focus on two questions:

•Are states required to license same-sex marriages?

•Can states refuse to recognize valid out-of-state same-sex marriages?

What are Ohio'sarguments?

Ohio's arguments are similar to those presented by Michigan and Tennessee in defense of their same-sex marriage bans. They say that marriage isn't a constitutional right, and that decisions about who is allowed to marry should be left up to states. In each state, voters approved same-sex marriage bans in previous years – the most recent being Tennessee's in 2006. The states will vehemently argue against a federal ruling on the matter.

"Such a ruling would say that the decade-long debate in the states has been improper," Ohio Attorney General Mike DeWine wrote in legal papers filed in March with the Supreme Court. "It would eliminate the possibility of (and requirement for) each community to confront this issue and reach a consensus that respects all sides."

DeWine also dismissed the notion that the same-sex bans were born of prejudice. He wrote: "All agree that traditional marriage arose for purposes unrelated to prejudice ... To hold that Ohio laws were driven by animus, by contrast, would demean millions of Ohioans by treating their deeply held beliefs about marriage as sheer bigotry."

Who are the

local plaintiffs?

In the Ohio case, there are 12 plaintiffs, including Cincinnati's Jim Obergefell, the case's namesake, and the adopted Ohio-born boy of a New York couple. (Ohio will only list one of the New York men's names on the boy's amended birth certificate.) There are two other Cincinnati plaintiffs, David Brian Michener, who like Obergefell, saw his longtime partner die in 2013; and funeral director Robert Grunn, who has provided service to many gay and lesbian clients.

The case also features three Cincinnati-area couples as plaintiffs: Kelly Noe and Kelly McCracken; Brittni Rogers and Brittani Henry; and Pam and Nicole Yorksmith. All three couples are parents to at least one child.

Who will argue

for the plaintiffs?

Two attorneys will address the questions separately.

Bonauto – lead attorney on the 2003 case that led Massachusetts to become the first state where same-sex couples could legally marry – will argue the first question. Bonauto, a longtime advocate for marriage equality, is appearing before the U.S. Supreme Court for the first time. Louisville-based civil rights attorney Dan Canon is second chair and will be at the table with her.

Doug Hallward-Driemeier, a former assistant solicitor general who has argued more than a dozen cases before the Supreme Court, will address the question about recognizing out-of-state same-sex marriages. Cincinnati attorney Al Gerhardstein will serve as his second chair.

Both are expected to argue that marriage bans deny gays and lesbians the right to equal protection under the U.S. Constitution's 14th Amendment.

The plaintiffs have another heavy hitter in their corner: U.S. Solicitor General Donald B. Verrilli Jr. is expected to argue for about 15 minutes in favor of same-sex marriage. The Obama administration filed an amicus brief for the plaintiffs in the case, and Verrilli is the government's lawyer before the court.

Who will argue states' cases?

Michigan's former Solicitor General John Bursch will present the argument that states can choose not to license same-sex marriages. Bursch, a special assistant attorney general, has argued eight cases before the U.S. Supreme Court and 18 before the Michigan Supreme Court.

A statement from Michigan Attorney General Bill Schuette's office said that between March 2011 and the end of 2013 Bursch argued more than six percent of all cases before the U.S. Supreme Court. He compiled a record, the statement said, "that the National Law Journal observed even more veteran high court advocates would envy."

Joseph Whalen, an associate solicitor general for Tennessee, will argue that states shouldn't have to recognize same-sex marriages from other states. Whalen is arguing before the nation's high court for the first time.

There are multiple plaintiffs involved in the case, so why is Obergefell's name the main one cited?

When consolidated cases hit the Supreme Court, the accepted shorthand is to refer to them by the plaintiff name whose case was filed first. In this instance, that distinction belongs to Jim Obergefell, the Cincinnati man who sued for the right to be listed as the spouse of his now-late husband, John Arthur.

What are the

possible outcomes?

Many legal experts and advocates on both sides of the issue are expecting the court to rule in favor of same-sex marriage.

The Supreme Court already has ruled favorably in the United States v. Windsor case. They also point to the fact that the court did not take up a full appeal after four federal appellate courts – outside of the 6th Circuit – nullified state bans. The Supreme Court effectively has allowed numerous same-sex marriages to take place.

The expectation is "the court is not going to pull the rug out from under all those couples," said Marc Spindelman, a constitutional and family law professor at Ohio State University's Moritz College of Law. The court, he added, "is trying to settle the matter, not unsettle the matter."

Phil Burress, who chaired the campaign that ultimately changed Ohio's constitution in 2004 to define marriage as between one man one woman, sees the court leaning toward allowing same-sex marriage. Burress said two of the justices, Ruth Bader Ginsburg and Elena Kagan, should not be part of the decision because they have presided at weddings of same-sex couples.

If the court issues a ruling against same-sex marriage, the landscape could look the way it did before the Windsor case — some states allowing gay marriage, many banning it. And thousands of same-sex marriages would be in question.

What's the schedule (arguments, rulings, etc.)

Oral arguments are set for Tuesday. A decision in the case is expected by the end of June.