What If We Lose Marriage Equality at the Supreme Court?

For all intents and purposes, it sounds like today’s SCOTUS hearings were a mixed bag of Justice responses pro- and anti-gay marriage. The New York Times (via Joe.My.God) shares its take on the day:

“The justices appeared to clash over not only what is the right answer in the case but also over how to reach it. The questioning illuminated their conflicting views on history, tradition, biology, constitutional interpretation, the democratic process and the role of the courts in prodding social change. Justice Kennedy said he was concerned about changing a conception of marriage that has persisted for so many years. Later, though, he expressed qualms about excluding gay families from what he called a noble and sacred institution. Chief Justice John G. Roberts Jr. worried about shutting down a fast-moving societal debate.

Justice Samuel A. Alito Jr. asked whether groups of four people must be allowed to marry, while Justice Antonin Scalia said a ruling for same-sex marriage might require some members of the clergy to perform ceremonies that violate their religious teaching. Justice Stephen G. Breyer described marriage as a fundamental liberty. And Justices Ruth Bader Ginsburg and Elena Kagan said that allowing same-sex marriage would do no harm to the marriages of opposite-sex couples.

At the start of Tuesday’s arguments, Chief Justice Roberts said he had looked up definitions of marriage and had been unable to find one written before a dozen years ago that did not define it as between a man and a woman. “If you succeed, that definition will not be operable,” the Chief Justice said. “You are not seeking to join the institution. You are seeking to change the institution.”

I know that our community has remained optimistic that SCOTUS will rule that same-sex marriage is constitutional but there is also a chance it won’t. Such a decision would lead to a whole set of new issues, questions, protests, and debates – including whether or not states would activate their previously struck down marriage bans? Would gay couples married when it was legal still be considered married?

There is no easy answer or resolution to what could happen, but our community needs to be prepared for any next steps to maintain equality (and not violence).

The Washington Post has taken a stab at predicting the new world if we backtrack to state marriage bans:

In deep-red states such as Oklahoma, Utah and Kansas, officials probably would waste no time trying to put a stop to same-sex marriages. Groups may attempt to have existing marriages invalidated or may press state officials not to allow state benefits for gay couples who have wed. Arizona state Sen. Steve Smith, a Republican from Maricopa County, predicted an immediate push to reinstate a constitutional amendment, approved in a 2008 voter referendum, defining marriage as between a man and a woman. “I don’t know how much clearer the will of the people can be expressed than by a vote to that effect,” he said.

In states such as Oregon and New Jersey, where the political climate has become more favorable to gay marriage in recent years, there probably would be a scramble to enact legislation to allow same-sex marriages. But the process could be more drawn out in places such as California, whose prohibition on same-sex marriage was part of the state constitution. If that ban was reinstated as a result of a Supreme Court decision, a voter referendum would be needed to get rid of it.

Elsewhere, the battles could be more pitched. In Virginia and Pennsylvania, for instance, freshly minted Democratic governors may resist attempts to revert to old laws, potentially clashing with conservative state lawmakers. And Republican leaders in Florida and elsewhere could find themselves squeezed between their conservative bases and gay rights forces that would label them bigots.

The biggest question: What would become of the thousands of couples who got married in the 22 states during the brief period same-sex marriage was allowed? James Esseks, an attorney for the American Civil Liberties Union, pointed to several recent cases involving same-sex marriage that suggest courts generally think that “once you’re married, you’re married.” But some experts think it could take years of litigation, and perhaps another go before the Supreme Court, to clarify that.In deep-red states such as Oklahoma, Utah and Kansas, officials probably would waste no time trying to put a stop to same-sex marriages. Groups may attempt to have existing marriages invalidated or may press state officials not to allow state benefits for gay couples who have wed. Arizona state Sen. Steve Smith, a Republican from Maricopa County, predicted an immediate push to reinstate a constitutional amendment, approved in a 2008 voter referendum, defining marriage as between a man and a woman. “I don’t know how much clearer the will of the people can be expressed than by a vote to that effect,” he said.

In states such as Oregon and New Jersey, where the political climate has become more favorable to gay marriage in recent years, there probably would be a scramble to enact legislation to allow same-sex marriages. But the process could be more drawn out in places such as California, whose prohibition on same-sex marriage was part of the state constitution. If that ban was reinstated as a result of a Supreme Court decision, a voter referendum would be needed to get rid of it.

Elsewhere, the battles could be more pitched. In Virginia and Pennsylvania, for instance, freshly minted Democratic governors may resist attempts to revert to old laws, potentially clashing with conservative state lawmakers. And Republican leaders in Florida and elsewhere could find themselves squeezed between their conservative bases and gay rights forces that would label them bigots.

The biggest question: What would become of the thousands of couples who got married in the 22 states during the brief period same-sex marriage was allowed? James Esseks, an attorney for the American Civil Liberties Union, pointed to several recent cases involving same-sex marriage that suggest courts generally think that “once you’re married, you’re married.” But some experts think it could take years of litigation, and perhaps another go before the Supreme Court, to clarify that.

One thing is for sure. Come June, we will know the answer.

Let’s hope for the best!