U.S. Supreme Court to Decide Constitutionality of Same-Sex Marriage Bans

 Posted on January 22, 2015 in Family Law

On Friday, January 16, the United States Supreme Court granted certiorari in four same-sex marriage cases. The court’s decision to hear these cases is historic – soon, all Americans will have the right to marry and divorce, or they will not.

Specifically, the court agreed to consider whether states have the constitutional power to ban same-sex marriage, and whether the Constitution compels states to recognize same-sex marriages performed elsewhere. The first issue addresses equal protection under the Fourteenth Amendment, while the second issue addresses full faith and credit (e.g., states must recognize marriages legally performed in other states).

Circuit Split on Same-Sex Marriage

This is not the first time petitioners have asked the court to consider these questions. However, this is the first time that the court has been presented with a circuit split regarding same-sex marriage bans (i.e., this is the first time that a federal circuit court of appeals has upheld a gay marriage ban). In November, the U.S. Court of Appeals for the Sixth Circuit upheld bans on same-sex marriage and bans on same-sex marriage recognition in four states: Kentucky, Michigan, Ohio and Tennessee. The Supreme Court will hear a petition from each state.

Last fall the Supreme Court declined to hear challenges to several same-sex marriage bans. While the court did not issue a reason, analysts posited that the court was waiting on a circuit split. The Sixth Circuit produced this difference in opinion.

Same-Sex Marriage in Illinois

Same-sex marriage has been legal in Illinois since last summer. Illinois also recognizes the validity of same-sex marriages performed in other states, even though not every state recognizes the validity of same-sex marriages performed in Illinois. That could change depending on the Supreme Court’s ruling in those four cases. There are two likely scenarios: (1) Either gay Illinoisans will lose the right to marry, or (2) every state in the country will recognize the validity of same-sex-marriages performed in Illinois (and everywhere in the United States).

Oral arguments have not been scheduled yet, but court-watchers predict that they will happen in April. (Oral arguments give each party the opportunity to present their case to the court.) In the meantime, legal experts will analyze the briefs submitted to the court and predict how each justice will vote on the issues.

Illinois couples should proceed normally for the time being. Until the Supreme Court says otherwise, same-sex marriage is still legal here and in most states. If you have questions regarding your right to marry, contact one of our experienced Kane County family law attorneys today. We can assist on a wide range of marriage (and divorce) issues, including prenuptial agreements, postnuptial agreements, division of marital assets and child custody. Contact us today for a consultation. We can assist those in the St. Charles area.