Attorneys discuss Supreme Court hearings on same-sex marriage

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By Tom Gantert

Legal News

After decades of debate, the United States Supreme Court is finally weighing in on one of the more controversial subjects in law--same-sex marriages.

California voters passed Proposition 8 in 2008 that limited marriages to unions between a man and a woman, but in 2010, a federal district court ruled that Prop 8 was unconstitutional.

The case was appealed to the U.S. Supreme Court, which agreed to review it. The Court last week also heard arguments on the federal Defense of Marriage Act, which was passed in 1996 and defined marriage as only between opposite sexes.

Richard Thompson, president of the Thomas More Law Center in Ann Arbor, which filed a Friend of the Court brief in support of Prop 8 and traditional marriage, said it would be a "shot in the dark" to try to predict how the Supreme Court would rule.

"It would seem to me when 52 percent of the people of California voted to ban same-sex marriage that the Supreme Court should not inject themselves into that decision by the people of California and should allow that to stand," Thompson said. "There's nothing in the Constitution that would allow the courts to say what marriage is. The Supreme Court should abide by the decision of the people or if not, the people cease to be their own rulers."

Ann Arbor Attorney Angie Martell said she thinks the Supreme Court will decide in a 5-to-4 vote that the Defense of Marriage Act (DOMA) is unconstitutional. She predicts Justice Anthony Kennedy will write the majority opinion.

While Martell said she senses that there is tension in the Court, and that some members of the Supreme Court do not want to rule on same sex marriage before the country has had time to have more debate on it, she noted: "The real issue is are they going to stick their necks out and say all people should be treated equally or are they going to allow second class status for gay and lesbian Americans."

"I think the time has come where the Supreme Court should say, 'This violates equal protection' whether the state is doing it or the federal government is doing it," she said.

Even if the Supreme Court decides DOMA is unconstitutional at the federal level, there's still a question about how that impacts the 20 states, such as Michigan, that have changed their constitutions to define marriage as between one man and one woman, she said.

"That's the question that still will have to be decided, but it's a start," she said. "You can't have gays and lesbians and their children relegated to living in only nine states with protections and the others living unprotected because they live in states with Super Domas. That's un-American."

Legal experts agree that the Supreme Court's decision on Prop 8 could include a variety of options.

It could say banning same-sex marriage is a violation of the "Equal Protection Clause" of the 14th Amendment of the U.S. Constitution. It could rule that states have the power to define marriage and restrict it to opposite-sex couples. It could dismiss the case outright. Or it could restrict its ruling only to the state of California and Proposition 8, meaning the debate would continue across the country.

Ann Arbor Attorney John Shea said he thinks the Supreme Court decision won't be so decisive as to end the legal debate.

"My best guess is that the Court will rule narrowly so as to allow the debate to continue in society at large, and to see how it goes in states that already have taken progressive steps in recognizing same-sex relationships," Shea said. "That may mean affirming the California decisions but not in a fashion that establishes a rule for all 50 states."

Jackson Attorney David Lady said he'd like the decision on marriage to rest with the states.

"It seems like it is more of a moral, religious, political issue than legal to me, however," Lady said. "Given my political persuasion, I always prefer that individual states decide on these issues, not the Federal government or the Supreme Court."

The Court's decision is expected in June.

Published: Mon, Apr 1, 2013

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