Gay Marriage Around The Country: Not All Judges Say 'I Do'

Same-sex couples in Arkansas are now lining up to get their marriage licenses, while Virginia's ban on same-sex marriage is being challenged. Tell Me More gets a breakdown of similar cases nationwide.

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MICHEL MARTIN, HOST:

This is TELL ME MORE, from NPR News. I'm Michel Martin. Same-sex marriage is back in the headlines this week. In Arkansas, gay and lesbian couples are lining up for marriage licenses after a state judge struck down its ban. Today in Virginia, a federal appeals court is hearing a challenge to the commonwealth's ban on same-sex marriage. But these are just two of many cases winding through the courts across the country.

We wanted to get a breakdown of where these cases are and where they might be going next, so we've called Andrew Harris. He is a legal reporter for Bloomberg News. He's with us from his office in Chicago. Andrew, thanks for joining us.

ANDREW HARRIS: Happy to be on the show, Michel. Thank you.

MARTIN: Also joining us in our Washington, D.C., studios is David Savage. He is the Supreme Court reporter for the LA Times, and we're going to talk about that side of the story. David, welcome back to you. Thank you for coming.

DAVID SAVAGE: Hi, Michel.

MARTIN: So Andrew, let me start with you, and let's start with the news in Arkansas. As somebody who has been covering a lot of these cases, how significant is this ruling, especially in a state that's considered the Bible Belt?

HARRIS: Well, Arkansas is unusual. It's one of the first Southern states to actually go in that direction. It was a state court judge's ruling, as opposed to most of these other rulings that are federal court rulings. But it becomes part of the larger mosaic as we are continually seeing courts across the United States rule in favor of gay marriage proponents as these challenges come before them.

MARTIN: And the attorney general there, as I understand it, plans to appeal the ruling. On what grounds?

HARRIS: Well, that is the law of the state. Attorneys general are typically responsible for upholding the state's laws. This attorney general has said publicly that while he personally is in favor of a right to gay marriage, he's also in favor of defending the laws of the state. So he is carrying out his constitutional duty as a state officer, by pursuing this appeal.

MARTIN: And one of the interesting things about the Virginia case, Andrew, is that the scenario is switched there, isn't it? The new attorney general there is declining to defend the state's...

HARRIS: That's...

MARTIN: ... statute. Correct?

HARRIS: That is correct, but it did not leave the law without defense. There are two Virginia court clerks who were charged with the statutory duty of dispensing marriage licenses. And they are represented by counsel at the federal appeals court who are fighting for reversal of Judge Allen's ruling earlier this year that threw out Virginia's ban.

MARTIN: So David, let's turn to you. A number of other states are also seeing same-sex marriage cases. What are some of the big ones that might end up in front of the Supreme Court?

SAVAGE: I think the case that most people have watched is the one from Utah because - a very conservative state. A federal judge there struck down the - its ban on gay marriage. The state of Utah very much wants to defend that - and is, which I think is important. The Supreme Court's going to want to have a case where there's a strong argument on both sides. And Utah is going to defend its law. It was argued...

MARTIN: When you say a strong argument, you mean a strong legal argument or strong advocates, where people will perceive - the public will perceive it as a fair and a vigorous contest?

SAVAGE: It's more the latter. That is, remember the California case washed out in June because the state of California was no longer going to argue for its ban on same-sex marriage. And the Supreme Court basically said, you don't have a case. This case is not a real case. So I think the case that's going to finally decide this in the Supreme Court, there needs to be a good argument on both sides.

So Utah is going to defend its ban on same-sex marriage. That case was heard in the 10th Circuit in Denver about a month ago. And so it's on a slightly faster track than the Virginia case. So that's the one that most people have been watching for.

MARTIN: What are the facts in those cases? Are the facts essentially the same, David, in all of these cases? They're individuals with long-standing relationships...

SAVAGE: Yes.

MARTIN: ...Who - attractive plaintiffs, basically, who have long-standing relationships and I think most cases, are raising children; who are making the argument that - and what are these cases all hinged upon? I mean, I think in one of the cases, it hinges upon the argument of what's best for the children.

SAVAGE: Yeah.

MARTIN: Is it? Is that pretty much the norm?

SAVAGE: That is the norm in most of these cases. And I think the point you raise is a really interesting one - is because I think what's really changed this debate over the last 10 or 12 years is, so many couples coming forward who've been very long-committed couples in a very long-term relationships, and many of them having children.

So they've sort of presented to the court, the cases - what's the rational reason? What's the explanation for saying this couple, which has children, should not have the same benefits of marriage? But yes, those are the plaintiffs in the Utah case - pretty similar to the other cases. The argument in all the cases is basically about the same; that under the Constitution, you have a fundamental right to marry, and to deny gays and lesbians that right denies them the equal protection of the laws.

MARTIN: Andrew, what's your perspective on this as person who's also been following these cases at the state level?

HARRIS: I think that analysis is spot-on. We are seeing people - there is another case in Michigan, out of the Detroit federal court, where we're seeing people - in that case, two emergency room nurses, each of whom - who had adopted children, who have a long-term relationship. They are co-homeowners. And their lawsuit in Detroit started as a bid simply to be able to adopt one another's children. It then got revised to include a challenge to Michigan's gay marriage ban.

That went to a full trial in February. And U.S. District Judge Bernard Friedman also struck down Michigan's ban as unconstitutional, as so many other judges have been doing since last year, when the Supreme Court issued its big ruling. And that case is going to be heard later this year, presumably on appeal at the U.S. Court of Appeals in Cincinnati. So that's one of three different appellate courts that are handling these cases, any one of which could go up to the U.S. Supreme Court.

MARTIN: If you're just joining us, we're taking a look at current same-sex marriage cases across the country. I am joined by Andrew Harris with Bloomberg News - that's who was speaking just now. Also joining us, David Savage. He's the Supreme Court reporter for the Los Angeles Times.

So Andrew, going back, you know, I think many people might forget - because so many of these cases are in the headlines - that 30 states have bans on same-sex marriage. So have you observed any trends in how these cases are going forward? Are there any broad trends that you can point us to?

HARRIS: Well, I think David said it well. What we're seeing, largely, is people - and in many instances, but not all - spurred by last year's U.S. Supreme Court ruling in the Windsor case, which struck down the Defense of Marriage Act definition of marriage as one man and one woman, for federal recognition purposes.

People are looking at that and saying, OK, the Supreme Court said that gay couples, at least those that are in states where gay marriage is legal, have to be treated the same as heterosexual couples under the law. And people have looked at that, and they've built upon that ruling to expand it across the state even though Justice Kennedy, when he wrote his majority opinion last year, didn't go that far. He very consciously limited the ruling to states where gay marriage is already legal. But now we're seeing that spread to almost a dozen states, at this point, since then that have, either by legislative fiat or by judicial ruling, have since legalized same-sex marriage.

MARTIN: So David, if you could pick up the thread there, what is the next frontier, in terms of the recognition of same-sex marriage? I mean, many people liken it to the Loving v. Virginia case, which struck down the ban on interracial marriage. That was decided upon, as I understand it, religious freedom grounds; which is to say that the couple in question, their religious practice did not bar couples of different races from being married. And the - as I understood it, the ruling was that you cannot interfere with the free exercise of their religion. Is that correct or not?

SAVAGE: No, it was basically an issue about - this was racial discrimination, and there was absolutely no basis for it, no reason for it. Do you remember - the Brown case was decided in 1954, and the court struck down racial segregation in the schools but sort of stood back and didn't interfere with the laws on the books in a good number of states - I think it was more than half the states, at that time - where blacks and whites could not marry.

But by the time the Supreme Court finally took it up in 1967, a unanimous decision - not controversial at all; almost no one disagreed with it. And I think a lot of the justices have wanted to sort of - the debate over gay marriage to sort of go the same way; that this would - over time, the states would, you know, strike down these laws, there would be gay marriage.

What's remarkable about this is it's happening so quickly because, as Andrew said, when Justice Kennedy had that case last year, you could read that opinion, and it was not exactly clear who won and who lost on the big question of gay marriage - because in the first part of the opinion, Kennedy said marriage has always been a state matter. States decide on marriage, and we're talking about states that have allowed gay marriage. And the second point is, the federal government can't deny equal treatment to people and benefits. So he struck down the state - the federal bans on equal benefits.

But some people could have read that opinion and said, oh, he's going to let the states decide. But instead, every judge, as Andrew suggested - there's been something like 11 cases since then, in the last year - every judge who's seen that issue and has had to confront the question - is, what's the state's justification for saying no to these gay couples? You know, what's the legitimate basis? And nobody can find one. Nobody can really explain what's the rational - what's the reason for denying these couples? So it's now moving very quickly.

MARTIN: But what's going to be the legal basis of - what is the legal basis of what these plaintiffs are seeking? Clearly, they're seeking standing within these states that don't - there are states that don't now recognize same-sex marriage. Are they seeking a federal right to marriage?

SAVAGE: Yes, that's right. They're seeking a ruling that would say in Virginia or elsewhere, a ruling that would say it denies their rights as citizens to the equal protection of the laws to deny marriage. And so one of those cases will get to the Supreme Court, I think, in the next term, not - you know, about a year from now, if Utah or Virginia is decided. In the next term, the Supreme Court will get that case. And the question will be, under the United States Constitution, do you have an equal right to marry if you're - gays and lesbians, same-sex couples?

MARTIN: Andrew, final question - very briefly, if you would. In the states where this matter has already been decided, has it been pretty well-accepted? I mean, one of the things we recognize, if we see Brown as a precedent, is that even in states where - even after school desegregation was the law, there was still a lot of on-the-ground opposition. Are we seeing that?

HARRIS: I don't know if we are seeing it in organized protest. Human beings being human beings, I think you will always find people who are accepting of change, and people who are resistant to change. And what we're seeing here is a sea change in American culture, and what is perceived to be the prototypical American family. And some people will be more receptive to that than others.

MARTIN: Andrew Harris is legal reporter for Bloomberg news with us from Chicago. David Savage is the Supreme Court reporter for the LA Times with us in Washington, D.C. Thank you both so much for joining us.

SAVAGE: Thank you.

HARRIS: Thank you, Michel.

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