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Commentary: The fate of millions rests in the hands of nine

The U.S. Supreme Court heard oral argument April 28 on cases from Michigan, Ohio, Kentucky and Tennessee regarding 1) whether same-sex couples have a fundamental right to marry, and 2) whether a state must recognize a same-sex marriage lawfully licensed and performed in another state. A decision is expected at the end of the court’s term in late June (and is expected to be in favor of marriage equality).

The Supreme Court’s decision will affect the lives of millions of Americans who are (or desire to be) in same-sex relationships: People like April DeBoer and Jayne Rowse, a Hazel Park couple who initiated a case against the State of Michigan (DeBoer v. Snyder) seeking the right to co-adopt their children; people like my clients, Bruce Morgan and Brian Merucci, who married in New York in December of 2013 following Bruce’s diagnosis of brain cancer, and who have been fighting to have their marriage recognized by the State of Michigan after the federal district court’s decision in DeBoer v. Snyder striking down Michigan’s constitutional ban on same-sex marriage; people like my fiancée and I, who are planning a wedding in Grand Rapids for next year in the hopes that marriage equality will be a reality in Michigan by then.

There are several ways in which the Supreme Court could rule. For example, it could find that same-sex couples have a fundamental right to marry, which would make the question on recognition of out-of-state marriages moot.

The liberal and conservative judges could reach a compromise by requiring recognition of out-of-state marriages, but not finding a fundamental right to marry, which would allow same-sex couples living in states without marriage equality to marry in another state then have their home state recognition their marriage; such a compromise would practically result in marriage equality, albeit requiring a little more effort for couples in states like Michigan.

Alternatively, the Supreme Court could rule against marriage equality on both counts, thus continuing the state-by-state fight for marriage equality.

The issue of whether same-sex couples have a fundamental right to marry is more compelling and will have a more significant impact than the narrower issue of recognition of out-of-state marriages.

Mary L. Bonauto, an “out” attorney who has devoted her life to fighting for marriage equality (including arguing and winning a case in Massachusetts that made it the first state to grant marriage to same-sex couples), argued on behalf of the plaintiff-couples in favor of marriage equality.

Bonauto was opposed by former Michigan solicitor general John J. Bursch, who defended the states. Solicitor General Donald B. Verrilli Jr. represented the United States government as an amicus in favor of same-sex marriage.

Bonauto began her oral argument by pointing to the similarities, rather than differences, between same-sex and opposite-sex couples: “The intimate and committed relationships of same-sex couples — just like those of heterosexual couples — provide mutual support and are the foundation of family life in our society.” She stressed to the justices that denying the right to marry to same-sex couples contravenes equal dignity and effectively grants them second-class status.

The justices’ questions to Bonauto focused on the meaning and history of the institution of marriage: How marriage has changed or evolved over the years, who gets to decide whether same-sex couples can marry, what it will mean to allow same-sex couples to marry, and whether denying same-sex couples the right to marry is discrimination.

Justice Anthony M. Kennedy found it significant that marriage has been limited to a man-woman union for “millennia,” while Justice Ruth Bader Ginsburg noted that recent changes to the institution of marriage — from one dominated by the male partner to a more egalitarian institution — have shown that marriage may evolve and have invited the conversation regarding same-sex marriage.

When asked about the efficacy of waiting to redefine marriage until there is more social science on the topic, Bonauto responded that “waiting is not neutral” and “‘wait and see’ by itself has never been seen as a justification under the 14th Amendment.”

Solicitor General Verrilli joined Bonauto in arguing for marriage equality, stating that same-sex couples “deserve the equal protection of the laws and they deserve it now.” He denounced the course of action proposed by some that marriage equality should be fought through the legislative process, not the courts, arguing that doing so puts the burden solely on same-sex couples, who could go their entire lives without having the chance — and the right — to marry.

Bursch (representing the states) argued last, stating that the case is not about how to define marriage, but about who gets to decide how to define it.

He argued that marriage developed for reasons of biology and childbearing, and that changing the definition to include same-sex couples would have societal consequences. The justices pressed back hard against Bursch’s traditional marriage argument, pointing to opposite-sex couples that did not want or could not have children, e.g., a 70-year old couple, and to the fact that many same-sex couples, including plaintiffs April and Jayne, wanted to give homes to unwanted children.

Justice Stephen G. Breyer noted that marriage is open to opposite-sex couples regardless of whether they wanted (or were able to produce) children. Justice Sonia Sotomayor questioned how denying marriage to same-sex couples increased the value of marriage to opposite-sex couples, to which Justice Antonin Scalia responded that the states simply needed to show that they had a valid reason for the denial. Justice Elena Kagan stated that the states had yet to offer a valid reason for their position, and Justice Kennedy added that the states’ position suggested that same-sex couples do not have a noble purpose for seeking to get married. “And that’s the whole point,” he said.

Justice Breyer added that marriage “is about as basic a right as there is.” Bursch did not waiver in his argument that allowing same-sex couples to marry will somehow weaken traditional marriage.

Bonauto summed up the choice before the Supreme Court as not one of who has the authority to decide the legality of same-sex marriage — the court or the legislature — but rather whether the individual can decide whom she will marry, or whether the government will decide for her.

The Supreme Court’s decision in June will directly affect the lives of millions of Americans, determining whether persons involved in loving, committed, same-sex relationships will finally enjoy the fundamental right to marry, or whether they will continue to be treated as second-class citizens by a country founded on the principle that all “are created equal.”

Until then, we wait with bated breath.

Stephanie Myott is an attorney at Rhoades McKee in Grand Rapids, Michigan. A version of this column originally appeared in Michigan Lawyers Weekly, sister publication to The Daily Record.

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