Lambda Legal: What If We Lose?

"If the Supreme Court were to rule in the cases in which it today granted review that the U.S. Constitution does not protect same-sex couples' right to marry and does not require states to respect marriages same-sex couples lawfully have entered in other jurisdictions, a number of issues would arise.

"With respect to same-sex couples who already have married as a result of court rulings, Lambda Legal strongly believes -- as a federal district court in Michigan ruled just yesterday with respect to marriages entered in that state before the 6th Circuit's adverse ruling -- that those marriages will remain valid and will need to continue to be respected by the states in which those marriages were entered. Nonetheless, the validity of those couples' marriages may be challenged and those couples may want to take additional steps (such as executing wills, durable health care powers of attorney, and securing second parent adoptions) to provide them and their families extra peace of mind and security.

"With respect to whether same-sex couples would be able to marry and would have their marriages respected in other states, that would vary from state to state. States in which marriage equality was achieved by a ruling under the state's constitution, by legislative reform, or at the ballot box, would be unaffected. Unmarried same-sex couples in Kentucky, Michigan, Ohio, and Tennessee (the states whose marriage laws the Supreme Court today agreed to review) would be forced to seek reform through the political process. States in which a final judgment has been obtained in federal court would be required to continue to allow same-sex couples to marry and to respect out-of-state marriages entered by same-sex couples unless and until someone with standing makes a motion to reopen the judgment and that motion is granted (unless stays are properly obtained before then). In some states, there may be no one with standing interested in seeking to set aside the existing judgment. Same-sex couples in states in which a judgment is on appeal or can still be appealed whose judgments have not been stayed should be able to continue to marry and to have their out-of-state marriages honored by the state until the existing judgment is stayed or reversed.

"There's no question that it would be a mess. This is one additional reason why the Supreme Court should reverse the 6th Circuit's aberrant decision and hold that same-sex couples, like all other couples, share the fundamental right to marry and that it violates federal guarantees of equality and liberty to refuse to allow them to marry or to deny recognition to the marriages they lawfully have entered in other states." - Jon Davidson, legal director for Lambda Legal, via email.

Quote Of The Day - Jon Davidson

"Today's 4th Circuit decision is not yet final. It won't be final until at least August 18th (it could be longer if a petition for rehearing is sought) and, of course, a stay of today's decision by the 4th Circuit or the Supreme Court might be sought by the clerks who defended the Virginia marriage ban. In addition, while nothing in the decision is unique to Virginia law and, once it becomes final, it will be binding precedent on the district courts in North Carolina, South Carolina, and West Virginia, the decision itself does not order the clerks in North Carolina, South Carolina or West Virginia to do anything. Nonetheless, just as the Boulder County clerk decided to allow same-sex couples to marry once the 10th Circuit issued its decision invalidating Utah's marriage ban, clerks in North Carolina, South Carolina or West Virginia might conclude that their obligation to follow the mandates of the U.S. Constitution (as now explicated by the 4th Circuit) overrides their duty to follow state law.

"The problem is that there would be some cloud over the validity of any marriages entered in derogation of state law before a final ruling governing that state has issued, as is true regarding the marriages entered by same-sex couples in Boulder and other counties in Colorado. While strong arguments exist that such marriages are valid, people need to remember that same-sex couples who married in San Francisco and Portland, Oregon before there was a ruling that those states' marriage laws were ruled to be unconstitutional saw their marriages held void. Because there is no decision yet on that precise issue in Colorado, the clerk in Boulder is warning same-sex couples who marry there that their marriages might subsequently be held to be void. So, the best advice for same-sex couples is to wait until there are final rulings unless it is worth taking the risk that the marriage might be voided (for example, if a child of the couple may be born in the interim, or if one of the members of the couple is gravely ill)." - Jon Davidson, legal director for Lambda Legal, via email.