Judging gay marriage
The U.S. Supreme Court will rule this month in Obergefell vs. Hodges, the case that could give same-sex couples across America the freedom to marry. The majority of states already have marriage equality, and the issue has lost salience for some. But the Obergefell decision still matters. In several conservative states, challenges to discriminatory bans have not had as much success.
State high courts in Massachusetts, Connecticut, Iowa and New Jersey ruled in favor of marriage equality. State judges in Hawaii and California also did so, but ballot measures later overruled the decisions.
The judges in these states have something in common: They were all appointed. Like federal judges with life tenure, they felt at liberty to side with equal marriage rights for samesex couples, even if in so doing they were siding against the majority.
The elected judges in states such as Texas and Arkansas, however, have lagged behind for years, perhaps because they feel pressure to rule based on popular sentiment. Perhaps they remember the 2010 retention election in Iowa, when anti-gay groups ran a successful campaign to oust three Iowa Supreme Court justices who had joined a unanimous opinion in favor of the freedom to marry.
Even when a federal court in Alabama ruled this year that same-sex couples had the right to marry, the elected state Supreme Court — led by marriage equality opponent Chief Justice Roy Moore — told judges in the state to defy the federal order.
Instead of outright defiance, justices in Arkansas and Texas seem to be avoiding a political controversy by delaying their rulings.
One case involving a samesex couple who moved to Texas after getting married in Massachusetts has dragged on for years. The couple, who sued as “J.B.” and “H.B.” because Texas does not prohibit firing someone for being gay, separated in 2009, and J.B. filed an uncontested petition for divorce.
Uncontested, that is, until the state intervened. The state argued that its ban on recognizing their union also meant it could not allow them to divorce. If this stands, they would be forever bound in a legal status they could not escape.
The Texas Supreme Court got the case in 2011, but it did not hear oral arguments until November 2013. There has been only silence from the court since then. In April, nearly six years after the couple filed for divorce, H.B. died, without any resolution. Jason P. Steed, one of their attorneys, said, “It’s unsettling. When the court refuses to decide cases, it’s refusing to do its job.”
While the Texas Supreme Court has been mute, the Ar- kansas Supreme Court has engaged in a very public debate about delaying its decision in a marriage equality lawsuit. In May 2014, an Arkansas judge ruled that the state’s marriage ban violated the U.S. Constitution, comparing marriage equality to the 1967 U.S. Supreme Court decision in Loving vs. Virginia, which invalidated state bans on interracial marriage.
Within three days of the Arkansas decision, 169 same-sex couples had applied for marriage licenses in Pulaski County. The state briefly recognized their unions. But social conservatives, including former Arkansas Gov. Mike Huckabee, immediately called for the judge’s impeachment.
The Arkansas Supreme Court placed the marriage equality order on hold until it rules. Then two new justices joined the court in January, months after the court heard oral argument in the case. A majority of the court inexplicably ruled that this required a new lawsuit to figure out who should hear the case, adding to the delay.
In a rare public letter, Justice Jim Hannah claimed that a majority of the justices had “created out of whole cloth an issue to delay the disposition” of the marriage equality lawsuit, and he recused himself from the new case. Justice Paul Danielson also recused himself, writing that he could not ethically be “complicit in … depriving justice to any party before this court.”
For some families, this month’s decision from the U.S. Supreme Court is their first chance at resolution in years. They are entitled to, at the very least, access to justice. And that requires judges who are prepared to rule on important issues in a timely fashion — without fear of politics.
Elected judges may feel pressure to rule based on popular sentiment.