If you have been paying attention to the news recently, you may have heard about the recent Supreme Court decision holding that same-sex marriages are constitutionally protected. While this might seem to end the question on the legality of same-sex marriages in the United States, issues regarding same-sex marriages can, and do, still arise. Before getting to any lingering issues, however, it is important to briefly go over the Obergefell case and what its impact has been so far.
The Obergefell Decision
In late June of 2015 the Supreme Court made a decision on the case Obergefell v. Hodges. The case originated from opposition to state bans on same-sex marriage in Michigan, Kentucky, Ohio, and Tennessee. While fourteen same-sex couples from those states and two men whose same-sex partners had deceased opposed the legislation in court, the Sixth Circuit, which had consolidated these cases, refused to overturn the respective state bans on same-sex marriage.
In their decision, the Supreme Court began by pointing out that, under the Fourteenth Amendment, states were required to not only recognize the validity of same-sex marriages that were lawfully licensed out of state, but also that states were required to issue licenses to same-sex couples, as well. In making its decision, the Supreme Court looked to the ever-changing nature of the family dynamic as well as the liberties protected by the Fourteenth Amendment
While one might think that the Supreme Court’s decision put a lid on any further controversy regarding same-sex marriage and legal issues, the truth shows otherwise. As can be expected, there is some resistance to the Supreme Court decision in Obergefell, with some court officials refusing to grant marriage licenses to same-sex couples. Other issues, however, are more technical, with some courts facing the aftermath of the Obergefell decision in same-sex marriage cases that were pending during the time Obergefell was in court.
Refusal to Grant License
While the Supreme Court’s opinion held that same-sex marriages are constitutionally protected, there is still opposition to the decision. As can be expected, not everyone agrees with the position advocated in Obergefell, with some court clerks and even judges still refusing to grant marriage licenses to same-sex couples.
Take, for example, the matter of issuing same-sex marriage licenses in Texas. Not only have clerks refused to grant marriage licenses to same-sex couples after the Obergefell decision, but the Texas Attorney General also issued a statement shortly afterwards alleging that clerks may refuse to issue same-sex marriage licenses as long as the refusal was based on religious grounds.
Texas is not the only state in which clerks have refused to grant marriage licenses to same-sex couples. Clerks have refused to grant marriage licenses to same-sex couples in Kansas, Kentucky, and Nebraska. While there is still debate regarding the legality of refusing to issue marital licenses to same-sex couples, the Judicial Ethics Committee in Nebraska has proposed a possible solution. The Ethics Committee’s opinion states that judges and clerks may not refuse to perform marriages for same-sex couples while performing marriages for opposite-sex couples. The Supreme Court’s opinion does state that judges and clerks may only refuse to grant a marriage license if they choose to refrain from handling any type of marriage, same-sex or opposite-sex. In addition, the opinion states that not only would judges or clerks be unable to refuse to perform same-sex marriages, but they would also be unable to perform opposite-sex marriages while providing referrals to judges willing to perform same-sex marriages. The rationale behind this opinion is that the performance of marriages is not a mandatory function of a judge or clerk magistrate, and that judges or clerks can choose to refrain from taking part in such activity.
Same-Sex Marriage Ban Cases
There is no arguing that the Obergefell decision legally answered any questions regarding the legality of same-sex marriage bans in the United States. Unfortunately, issues can arise since, at the time the Obergefell case was being heard by the Supreme Court there were several states with same-sex marriage bans in their legislation. In addition, in these states with same-sex marriage bans, there was also some litigation regarding the constitutionality of these state bans in court.
While one might think that the Supreme Court decision answered all questions, one issue arises when it comes to handling same-sex marriage cases that were pending while Obergefell was being heard by the Supreme Court. That issue is whether courts should dismiss the case advocating for same-sex marriage rights due to the fact that the issue is now moot, or whether Obergefell was applicable only to the parties involved in that case, and the same-sex marriage should be affirmed based on the Obergefell decision. Take for example, the matter of the Eighth Circuit and its handling of litigation concerning the Arkansas state-ban on same-sex marriages.