Fourteenth Amendment—Right to Recognition of Marriages of Same-Sex Couples Under State Law
In United States v. Windsor, 133 S. Ct. 2675 (2013), the Supreme Court invalidated federal laws and regulations to the extent that they denied benefits to same-sex couples who were married in any of the thirty-six states that now permit same-sex couples to marry. On Friday, the Supreme Court granted certiorari in four consolidated cases to decide whether the Fourteenth Amendment requires all states to license marriages between persons of the same sex and to recognize marriages of same-sex couples that are performed out-of-state. Beyond its significance to the debate over marriage equality in the United States, the Court’s decision should be of great interest to the business community at least insofar as the recognition of a constitutional right to marry would have direct and far-reaching effects on the regulation of, and benefits available to, numerous employees who live and work in states that do not currently allow or recognize marriages of same-sex couples.
All four of the cases consolidated by the Court—Obergefell v. Hodges, Tanco v. Haslam, DeBoer v. Snyder, andBourke v. Beshear—arise from the Sixth Circuit, where last November a divided panel upheld bans on marriages of same-sex couples in Ohio, Michigan, Kentucky, and Tennessee upon finding that the petitioners’ constitutional rights to equal protection and due process do not supplant the respondent states’ traditional role in defining and regulating marriages among their citizens. The Sixth Circuit’s decision conflicts with decisions from the Fourth, Seventh, Ninth, and Tenth Circuits, all of which have held that state laws prohibiting marriage of same-sex couples or refusing to recognize marriages performed in other jurisdictions are unconstitutional.
Amicus briefs in support of the petitioners will be due on March 6, 2015, and amicus briefs in support of the respondents will be due on April 3, 2015. The Court’s order granting certiorari includes a directive that “[t]he parties are limited to filing briefs on the merits and presenting oral argument on the questions presented in their respective petitions,” which may in turn constrain the issues and arguments that are raised in amicus briefs filed on behalf of each party. Any questions about the case should be directed to Richard B. Katskee (+1 202 263 3222) in our Washington office.