Some states resist high court’s ruling
But is it the final word on same- sex marriage? Some states’ actions say no.
Same- sex marriage is now legal, but questions remain over regulations and exemptions.
Same- sex marriage is now legal in the U. S., but some states are still refusing to issue marriage licenses to gay couples, and religious leaders and business owners are wondering what effect the Supreme Court’s ruling might have on their practices.
In an interview, UC Berkeley law professor Melissa Murray, who specializes in family and constitutional law, explored how those issues intersected with same- sex marriage rights.
Same- sex marriage is legal in all 50 states, but does that mean anyone can get married within the U. S.?
“It should mean that,” Murray said. “But there’s already been some pushback from a number of states.”
Louisiana is delaying marriage licenses for samesex unions until the Supreme Court issues an official mandate announcing that the ruling has taken effect. Mississippi issued three licenses, then called a halt, saying it is waiting for the U. S. 5th Circuit Court of Appeals to act.
Utah might join the resistance. A state lawmaker has reportedly drafted legislation to stop Utah from issuing marriage licenses to anyone — gay or straight.
“You should think of Brown vs. the Board of Education, which desegregated schools,” Murray said, referring to the 1954 Supreme Court ruling that struck down separate- butequal schools as unconstitutional. “But it actually took years for that to happen because so many Southern states dragged their feet.”
And same- sex couples might not be able to get married everywhere; churches, temples and other religious institutions could seek exemptions.
Whether those exemptions would stand up under the Constitution is unclear, Murray said, but in states where same- sex marriage was already legal, most churches and religious leaders retained the freedom to refuse to marry gay couples.
What legal standing do Louisiana and Mississippi have to delay the process?
These states are on unclear legal ground.
“Think about abortion,” Murray said. “Women have a right to abortion, but the state doesn’t seem to have to furnish the ability to have one.”
Indeed, states don’t have to support or fund abortion clinics even though the Constitution guarantees women the right to choose to end a pregnancy.
In other words, even when rights are confirmed by the Constitution, states don’t necessarily have to provide avenues to exercise those rights. Actively denying those rights or outlawing their exercise is unconstitutional, but states may be able to circumvent same- sex marriages by avoiding marriage altogether.
Whether states have an obligation to furnish the mechanisms necessary to enter a marriage is unclear, Murray said. But equally unclear is the sustainability of a strategy of total avoidance, she added.
The governors of Texas and Louisiana hope to stop same- sex marriage. What options do they have?
“The Supreme Court is the court of last resort on the question,” Murray said. “Unless there’s another decision related to it, I don’t think they can go back to the courts.”
But a new, related case could spur the courts to clarify the extent to which states must facilitate samesex marriage.
Did the Supreme Court leave any room for states to regulate marriage in any way?
States actually maintain plenty of leeway under the Supreme Court ruling to regulate marriage individually. But no states can outlaw same- sex marriage, Murray said.
“States can prescribe who may marry as long as it is within constitutional bounds,” she said.
She recalled Loving vs. Virginia, the 1967 Supreme Court case that struck down bans on interracial marriage.
Although states could not outlaw interracial unions, they could issue a number of requirements — blood tests, signatures, fees — for marriage licenses as long as those requirements didn’t prevent couples of different races from tying the knot.
These same kinds of provisions can still be imposed by states as long as they don’t prevent same- sex couples from getting married.
Does everyone have to perform same- sex marriages, even if they are morally opposed?
The answer to this question is also unclear, Murray said. Most states that allowed same- sex marriages before the ruling also provided religious exemptions.
The 1st Amendment guarantees people the right to free expression, which could include expressing objections to same- sex marriage by not providing marriage services.
But the extent to which services can be denied and by whom will probably depend on future challenges to the law and more court rulings, Murray said.
Texas Atty. Gen. Ken Paxton, a Republican, released a nonbinding legal opinion on Sunday saying the 1st Amendment’s guarantees of religious freedom would allow county clerks and their employees to decline to issue marriage licenses to same- sex couples.
In a statement, he warned that declining to provide licenses could lead to “litigation and/ or a fine,” but that “numerous lawyers stand ready to assist clerks defending their religious beliefs, in many cases on a pro- bono basis.” What about other people in the marriage business? Do f lorists and bakers have to provide ser vices to samesex couples?
Again, the effect of the Supreme Court ruling is unclear. Previous challenges involving businesses turning away gay customers who were trying to throw a wedding have resulted in wins for the couples.
Most states faced with this question have affirmed in court that it is illegal to deny services to someone based on sexual orientation.
Still, Murray says, future lawsuits could inf luence these business owners and couples seeking clothing, food and decor for their wedding ceremonies.