05/01/2015 04:11 pm ET Updated Jun 30, 2015

Third U.S. Supreme Court Case on Same-Sex Marriage

At the end of April, the United States Supreme Court heard the third case on same-sex marriage in a period of two years. The Court previously avoided deciding whether same-sex marriage is protected by the U.S. Constitution, instead deciding that one party had no standing in the case, and in the other case, that section 3 of DOMA was unconstitutional as it did not recognize valid same-sex marriages for federal benefits and obligations.

The legal question in the current consolidated cases before the Court is whether the Fourteenth Amendment to the U.S. Constitution, which guarantees due process and equal protection of the laws, prohibits states from banning same-sex marriage. If so, states can no longer ban same-sex marriages. The federal appeals court in this case had held there was no such prohibition on the states--and so they could continue to ban same-sex marriage--but other similar courts held there was indeed such a prohibition.

Oral arguments focused on who should decide to legalize same-sex marriage--the federal courts by recognizing a constitutional right to same-sex marriage, or the people by acting in a democratic process (whether by ballot or by the legislature). Most of the same-sex marriage victories in the last decade have been handed down by federal courts that overturned the people's definition of marriage as between a man and woman that existed for millennia, as Justice Kennedy--the swing vote--noted. Although public opinion on same-sex marriage has become more favorable, people in many states have not yet acted to expand the definition of marriage to same-sex couples by ballot or legislature, unless compelled by a federal court.

The counterargument is that if same-sex marriage is a constitutional right, it cannot be subject to a vote by the people in the states--instead, it must be legalized. However, it is for the U.S. Supreme Court to decide whether there is indeed a constitutional right to same-sex marriage under the Fourteenth Amendment. The Supreme Court has previously interpreted the Fourteenth Amendment to encompass various constitutional rights not explicitly enumerated, including, for example, parental rights and the right to marital privacy involving the use of contraceptives. Alternatively, as Court observers have noted, the Supreme Court can strike down the same-sex marriage bans if the bans lack a rational basis, which is the test for constitutional challenges that are not identified by the Court for a higher level of scrutiny.

The second question before the Supreme Court is whether states must recognize the same-sex marriages of other states under the Fourteenth Amendment. If so, this would legalize same-sex marriage because a couple could marry in one state and move to another. However, it would not make same-sex marriage a recognized constitutional right. While this approach seems to avoid the sticky issue of the constitutionality of same-sex marriage, it may be unpersuasive to the Court because, as suggested in oral arguments, it would mean that one state could legislate for all on this issue.

While many Court observers believed that the Supreme Court would recognize same-sex marriage as constitutionally protected in this case, oral arguments did not reveal how the Court would decide. The case is Obergefell v. Hodges, and because it comes at the end of the court term, a decision is expected soon.