Q&A: What's Next In Same Sex Marriage Cases

Feb 3, 2015

FSU law professor Courtney Cahill writes extensively about legal issues surrounding sexuality.
Credit law.fsu.edu

Florida’s constitutional amendment banning gay marriage was passed by 62 percent of voters in 2008. But various lower court rulings last year found the ban to be unconstitutional, and federal judge Robert Hinkle agreed.

Now, same sex couples can marry in Florida, but four states have gay marriage cases pending before the U.S. Supreme Court.

Courtney Cahill is a professor in the Florida State University College of Law, writing extensively on constitutional law and same-sex relationships. It’s an issue close to home for Cahill, who is in a same-sex marriage. She wed her partner in Massachusetts in 2008.

We talked with Cahill about current rulings and how she thinks the Supreme Court will handle the issue.

We have this federal court ruling that opened the door to same sex marriage in Florida. Tell us what that ruling said.

Judge Hinkle here in Tallahassee found that Florida’s marriage exclusion violated the 14th Amendment to the federal Constitution. He held that Florida’s marriage exclusion violated the fundamental right to marry that’s protected under the 14th Amendment’s due process clause.

Now the U.S. Supreme Court has agreed to rule on four cases involving gay marriage bans that have been upheld in Kentucky, Michigan, Ohio, and Tennessee. The court will determine whether those state bans violate the country’s 14th amendment. Why do you think the Supreme Court finally decided to take on this issue?

For two reasons. One, there’s been an overwhelming trend in favor of marriage equality since the Supreme Court rendered its landmark gay rights decision in United States v. Windsor, which struck down a key provision of the federal Defense of Marriage Act – which defined marriage solely in opposite sex terms for the purpose of federal benefits.

The second reason that I think the court took this case is because there was finally what’s known as an intercircuit [or intra-circuit] split.

Several circuits have ruled in favor of marriage equality, striking down same-sex marriage exclusions. The 6th circuit [court] has been the first circuit in the last year and a half since Windsor was decided to reverse lower court rulings striking down marriage exclusions in those states. So now there is a split in the United States among the circuits, and typically the court doesn’t want to move on these issues until there’s a circuit split.

We can assume it’ll be at least a few months before there’s a ruling. Would you make a guess and tell us what you think the justices will decide?

I would predict that the court is going to rule in favor of marriage equality. The time is ripe. Thirty-six states now recognize marriage equality for same sex couples. I think that five justices - which is all you need – on the Supreme Court are ready to come down in favor of a national marriage equality precedent.