The Supreme Court has agreed to hear arguments for same-sex marriage, and the Justice Department is expressing an opinion in the matter. After previously refusing to hear arguments in same-sex marriage cases, the Supreme Court has reversed, and will hear cases in an upcoming session. Eric Holder declared this week that the Justice Department will be filing a brief, asking the court to support legalization of marriage for all American families.
According to LGBTQ Nation, the Supreme Court said on Friday that the justices will hear marriage cases in April. This has led to a great deal of speculation about what the decision will be. The current Supreme Court Justices have made some very conservative-leaning choices — such as upholding the right of a for-profit corporation exemptions to insurance law for religious reasons — but their choice not to hear marriage cases last year also made same-sex marriage the law of the land in several states.
The U.S. Justice Department, however, isn’t standing inactive on the sidelines — they’re stepping forward to put in their own two cents on how same-sex marriage cases should be settled. According to the Washington Blade, Eric Holder has stated that the Justice Department will file a Friends of the Court brief, in which they will “urge the Supreme Court to make marriage equality a reality for all Americans.”
The court has said it will address two separate questions. The first is whether or not the Constitution requires states to issue marriage licenses to same-sex couples. The second is whether a state that does not allow same-sex marriage must recognize a marriage that took place in another state, in which it was a legal marriage.
This has been read by many as a hint to what the court expects to rule. After all, if, on the first question, the court determined that states must issue same-sex marriage licenses, then there would no longer be any concern about recognizing a same-sex marriage from another state, making the second question moot.
It’s led to speculation that the court has already decided that states do not have to allow same-sex marriage, and that this, like some other marriage laws, including age at which one is allowed to marry, and how closely related a couple can already be (some states allow first cousins to marry; others do not), could simply be left to vary by state. However, it may not be as strong a clue as it appears; the Supreme Court may merely be agreeing to rule on the two questions that are being asked of it, without judgment on whether the second will be relevant.
It’s also worth recognizing that the question of whether a state must recognize a marriage that is legally performed in another state is wider than same-sex marriage, and the court may be electing to rule on this aspect merely to set a precedent that will be relevant if, for instance, polygamy or other marriage-related questions should arise in coming years.
The Supreme Court’s ruling is, of course, still wide-open for speculation, but in the question of same-sex marriage, the Justice Department, at least, has made its stance clear: same-sex marriage should be legalized nationwide, to, in Holder’s words, “ensure the fundamental equality of all Americans — no matter who they are, where they come from, or whom they love.”
[Photo: Giovanni Dall’Orto]