On Friday, January 16, the U.S. Supreme Court granted certiorari to several same-sex couples, all of them plaintiffs in DeBoer v. Snyder, et al., No. 14-571. The plaintiffs have asked the Court to overrule the opinion issued by the 6th Circuit on November 6, 2014. (MRW covered that issue in Same Sex Marriage in Michigan, Ohio, Kentucky, and Tennessee:  An Analysis of DeBoer v. Snyder.)

Certiorari was not unexpected, as the 4th, 7th, 9th, and 10th circuits have all ruled in favor of same sex marriage. Nothing requires the Court to resolve a split among the circuit courts, but it happens routinely when the split involves an issue that reaches many people.

In its order granting certiorari the Court presented as issues whether the Fourteenth Amendment requires a state:  (1) “to license a marriage between two people of the same sex?” and (2) “to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?” At Election Law Blog Rick Hasen asks Has #SCOTUS Stacked the Deck Against Gay Marriage in How It Has Framed the Question? Mr. Hasen, a professor at the UC-Irvine School of Law, wonders why the Court has focused on the rights of states to deny same sex marriage licenses, as opposed to focusing on the right to marry. (He alludes to Court action about framing the issues.) His theory is interesting, both because it raises questions about how the Court operates and because he wonders about the states getting out of the business of sanctioning marriage entirely. On getting out of the marriage business, that is unlikely, but worth exploring. (The issue, by the way, is not about performing ceremonies; instead it’s about licensing and sanctioning marriage at all.)

No one likes to talk about just how advantageous marriage is, financially. Here, from The Daily Beast, is Singled Out: Are Unmarried People Discriminated Against? by Maura Kelly. For sure, there is a marriage penalty for some couples in connection with the payment of federal income taxes. And Ms. Kelly’s piece focuses on plenty of issues outside the realm of finances. Nevertheless, government subsidizes marriage.

Are the subsidies good or bad? That depends, first, on your marital status. (Married, and the answer is almost surely yes!) More significantly, however, while people can argue that marriage fosters stable relationships, communities, children, etc., the benefits hit the target only slightly. Many marriages are not stable at all. Plenty of people marry and do not have children, many unmarried couples have children, and lots of people marry long after child-rearing can occur. As it is with most status benefits, though, the financial goodies get taken for granted over time. Do you think about the rationale for the deductibility of home mortgage interest? Or about why your health insurance premium, paid for by your employer, is a deductible business expense?

There’s more, too. Marriage is also a religious ritual for many people. This fact complicates the situation, certainly, in light of First Amendment jurisprudence associated with religion.

So the Court must tackle turf in which same sex couples, clearly looked upon with disfavor by most people until recently, have not been given the same set of benefits which are available to people with different sexual orientations. (Consider, too, how unfair this is if genetics plays any role in being gay.) Will the benefits go away? Highly unlikely? And even if they did, free exercise/establishment clause claims make it even more unlikely that government can eliminate marriage as a legal form of relationship.

What will happen with DeBoer v. Snyder? Who knows, but a piece in The Atlantic by Matt Ford, The Supreme Court Will Decide If ‘Gay Marriage’ Is Just ‘Marriage’, summed up my best guess pretty well:

Nothing is certain until it happens, and the court could still surprise the country with its ruling in June. But with the near-unanimous embrace of marriage equality by the lower courts and the social trajectory of gay rights in recent years, a Supreme Court ruling against marriage equality would likely last only as long as its authors.

Stay tuned!