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What if the U.S. Supreme Court rules against gay marriage?

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WASHINGTON -- It's a historic decision that is expected to come any day now before the end of June.

At the heart of the question that will be answered by the U.S. Supreme Court: Is marriage a fundamental right afforded to everyone, gay or straight, under the 14th Amendment of the U.S. Constitution?

Oral arguments in April revealed a divide among the court's nine justices on the issue.

If the highest court in the land were to rule against same-sex marriage and in favor of upholding the existing bans already in place in several states, including Michigan, Cooley Law School Assistant Dean Tracey Brame said it could wreak legal havoc in what would become an extremely fragmented system.

“What would emanate from that is a somewhat chaotic situation in which you have many states that allow same sex couples to marry--and at least 13 that don’t--so you end up with a patchwork of laws," Brame said.

If and when the Supreme Court ever makes a decision on an issue, there is no further opportunity to appeal it, which means the next logical step if the justices decide against same-sex marriage would be to take the issue back to voters, according to Brame.

“The court could say there’s no Constitutional right to same sex marriage and therefore each state can decide what they want to do," she said. "Then those fighting for same-sex marriage would be left to the ballot box.”

Recent polling commissioned by the Freedom to Marry Coalition suggests a growing majority of Americans now say they expect the Supreme Court to rule in favor of allowing same-sex couples to wed, which Brame said could be a indicative of an ultimate decision.

But Jennifer Judd, director of field operations for Equality Michigan, said taking the issue back to voters is not a favorable alternative option. Judd instead said the LBGT advocacy organization remains optimistic the court will rule in favor of marriage equality.

“We don’t believe that people should be voting on civil rights issues, that’s just not what we believe is a strategy at this point," Judd told FOX 17 by phone.

“We have to keep continuing to fight toward this. It wouldn’t be the first time the Supreme Court got a decision wrong before getting it right and we believe the American people are way ahead of where the majority of Justices are who may get it wrong.”

But even if the court rules in favor of same-sex marriage, Brame said it could still open the door to several other questions. Citing the recent faith-based adoption objection laws passed by Gov. Snyder this week, Brame questioned whether legally married same-sex couples would still face discrimination when trying to adopt.

Same-sex marriages already on the books are likely a safe bet to stay that way, Brame said. Likewise, states already allowing same-sex marriages would likely continue business as usual.

The fate of the 300 or so same-sex couples married in Michigan in 2014 during a brief legal window could possibly face a more uncertain future because a decision from the Supreme Court could a set a precedent for the state to follow instead. Gov. Snyder said in February the state would recognized the marriages.

Meanwhile, Christian leaders across the country are also preparing for the possibility the court strikes down same-sex marriage bans by promising 'civil disobedience.'

“While there are many things we can endure, redefining marriage is so fundamental to the natural order and the common good that this is the line we must draw and one we cannot and will not cross,” according to a pledge from the national Defend Marriage campaign.

Brame said any decision from the Supreme Court will hinge on whether the justices consider marriage to be a fundamental human right.

“Is it like issues related to race discrimination where there’s no room for citizens of any state to vote on it, it’s just wrong," she said. "Or are you going to treat it differently and say it’s not a right permitted in the Constitution, this is something people in the state have the opportunity to decide for themselves and that is historic and that’s what people are waiting for.”

While a decision is expected before the end of the month, it's possible the justices could add days to the session and push a decision back until July.

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33 comments

      • unreligious

        Funny that someone who uses the tag-name founding fathers has so little knowledge of what they said. Try the first amendment and the right to petition the government for a redress of grievances. I’m sure if you were gay you would be back again and again until the government granted you full equality.

        • TheFoundingFathers

          Lol the laws don’t change minds, the whole “gay” thing will never be accepted by the people, this whole drawn-out bullshit will mean nothing if people don’t accept it and that is the FACT that the gay community fails to realize.

          • Jennifer Blossom

            Since 60% of all Americans support same-sex marriage now, and even among the young Republican Millennials polls show support running at 58%, I don’t think that your “FACT” is going to be a problem :)

        • Emily Franklin

          What they said was that defining and regulating marriage was the exclusive right of the states. It was not the founding fathers who changed that, it was modern, power-hungry federal politicians who have been selling off the Constitution bit by bit for personal gain.

          • Sheila W.

            The sad part about that is that some people care more about themselves than they do about freedom. They don’t realize, because they don’t care about anyone but themselves, that more is at stake here than marriage. This article talks about fragmentation of the laws, but the real issue here is fragmentation of the country.

    • Mac Zeff

      Yep. This endless debate over homosexual marriage reveals two very important aspects of the redefinition of marriage, Americans are not going along with it and two – the intolerance of those trying to redefine marriage is historically unprecedented.

  • Inis Magrath (@InisMagrath)

    Oral arguments in April revealed a divide among the court’s nine justices on the issue.
    No. Oral arguments “reveal” nothing, as any serious Supreme Court analyst will tell you. Justices play devils advocate, they ask hard questions of both sides.
    The chances of the Supreme Court upholding SSM bans is zero. Marriage equality will be the law of the land and everyone knows it.

  • zasterz

    And what if the Easter Bunny rides in on a flying pig? What if Santa Claus turns out to be real? Aw.. You guys and your wishful thinking. It would be funny if it weren’t so sad.

    Just kidding– it’s still pretty funny! :D

  • Keith Pullman

    Marriage equality is going to happen sooner or later. Let’s make it sooner. Under a system of gender equality, there is no good reason to deny that we must keep evolving until an adult, regardless of gender, sexual orientation, monogamy or polyamory, race, or religion is free to share love, sex, residence, and marriage (and any of those without the others) with any and all consenting adults. Polyamory, polygamy, open relationships are not for everyone, but they are for some. The limited same-gender freedom to marry is a great and historic step, but is NOT full marriage equality, because equality “just for some” is not equality. Let’s stand up for EVERY ADULT’S right to marry the person(s) they love. Get on the right side of history!

    • Mac Zeff

      I disagree Keith. It will not happen sooner or later. There are too many people who see this as a demand by a special interest group to get the state to abuse its powers by forcing acceptance of its agenda on the mass population. Even if government accepts it, many people will not.

    • Kevin Rahe

      It all hinges on what is meant by “gender equality.” My view is that men and women are equal but different. I also take a moderate view of the importance of one’s sex – that it is important in certain ways but not so important that it affects one’s dignity as a human being. The problem is that it’s only EXTREME views of the importance of one’s sex that get any respect in the media. For instance, on one extreme we have people like Bruce Jenner, for whom their sex/gender is far TOO important, to the point that they apparently feel that it affects their dignity as a person. On the other extreme we have those who engage in homosexual relationships and acts, for whom one’s sex has NO IMPORTANCE AT ALL. Then those of us who hold a moderate (and I say healthy) view between those extremes get execrated for having it. Bizarre.

  • Lindsey Ann Lewis

    What will happen? I’m not sure, but if the Supreme Court decides to go against the Constitution and the fact that this country stands for freedom, I personally will be ready for armed revolution. If they won’t give us what we deserve, we take it by force if need be. One thing is certain, though, I will not accept it or follow it, I will have my liberty. To quote: “Give me liberty or give me death!” In addition, in light of the horrendous Citizens United decision, if the Supreme Court gets this one wrong, it will lose any and all respect it still had. The conservatives on all levels need to go so we can progress with the rest of thew world. If they want to live in the Dark Ages, let them make their own country. If they don’t like liberty and freedom, they’re free to leave and go elsewhere. They’re the ones with money, after all.

    • Adequatcy

      Homo”sexuality” is an action pal. Actions don’t define people. So this whole discrimination argument is bogus and it’s a disgrace to actual civil rights movements.

  • Adequatcy

    They say we have no arguments against this yet in the supreme court, the woman fighting for it, got more or less annihilated. And, I mean can someone even tell me what is wrong with this argument I am about to give?

    When homo”sexual”s get “married” what do they get? Benefits. And who provides those benefits? The government. And who is the government? The people. And those people include people like me and everyone who voted against homo”sexual” “marriage”. So how is it right, especially against the will of the governed, to force people to subsidize, recognize, and actually REWARD a meaningless “relationship”, a “relationship” that servers no purpose in society and that many people would rather be put to the sword than to bless? Exactly. They are forcing society to reward their relationship, so how is that right? The answer is it isn’t… And that’s just my legal argument.

    Apparently, they want to be left alone, yet all over the place they are forcing us to take part in their “marriages” and other pro homo”sexuality” events or face PRISON, for example, bake this cake or do 5 years after getting fined a quarter of a million dollars; they are forcing us to recognize and actually REWARD their “relationships”; they are working to force Churches and others to perform their “marriages” and ceremonies or lose tax exempt status or be punished via government action, which is political violence, and MORE!

    I rest my case, they are the oppressors, and they always have been.

    • Peck Lakeet

      How, exactly, are YOU, Adequatcy, forced and oppressed? I respect the right to your opinions and beliefs, as I hope mine are.

    • KLINGSOR

      That’s right. We’re also going to force you to divorce your spouse and marry someone of the same sex.
      Be afraid. Be very afraid.

    • Reason

      14th Amendment, equal protection clause. If you’re going to give government benefits to one class of people (as is the case currently with heterosexual marriage), you have to give them to all people. No one is forcing the government to reward anything, only to extend the ability to marry across all parties able to consent to it.

      No one is ever going to force a church to perform a ceremony it doesn’t want to, Chicken Little. You need to calm down from all this “gays are going to enslave our children” hyperbolic nonsense if you want to be taken at all seriously.

    • R. Phelps

      Heteros have been throwing their overblown celebration of marriage in everyone’s faces forever! Then we watch as these marriages dissolve. The institution has been destroyed by the same people who feel it was made for them. My partner and our son deserve all the rights of marriage. My partner and I have been in a commited relationship for 26 years. So let it go and allow us to be a part of marriage because we have a right to it!!

  • Emily Franklin

    Without there being a federal definition of marriage (because it has been the exclusive right of the states to define, according to the Constitution), and because the SCOTUS does not have the authority to establish any laws regarding such a definition, they will not *legally* be able to interpret whether anyone has a right to it or not. Should they rule in favor of gay marriage anyway, it would be the most telling indication yet of extent to which our government’s functionality is collapsing. This issue is supposed to be going through Congress…the legislative branch…not the judicial branch. Congress makes the laws, the court interprets the laws. Since there are no laws defining what the federal government considers marriage to be, there is nothing for them to interpret. The whole way this is being addressed is itself a violation of the Constitution. I think that is a much more important issue for this country than whatever they may decide on this particular case.

    The other thing that would happen if they rule in favor of gay marriage is that Constitutional state autonomy would cease to exist. Legally, precedent would have been established for removal of state autonomy any time the court sees that to be in favor of federal interests. That is an extremely dangerous major step in the direction of Communism.

    • Reason

      I don’t think you have the slightest idea what Communism is if you think the strengthening of the federal government is going to lead to it.

      And this case is not about the removal of state autonomy in favor of federal interests–it’s about the removal of state autonomy in favor of INDIVIDUAL interests. The state does not have the right to establish laws that violate individual civil rights. That is a precedent that needs to be maintained.

  • Sheila W.

    “What would emanate from that is a somewhat chaotic situation in which you have many states that allow same sex couples to marry–and at least 13 that don’t–so you end up with a patchwork of laws,” Brame said.

    We are supposed to have a patchwork of laws, we are a union of semi-autonomous states. That is what the USA is supposed to look like. Diversity, remember? This whole movement toward federal homogeneity is not a good thing. It is bad for the country, it is bad for the states, it is bad for the people. The only people who benefit from it are federal politicians and lawyers.

    Let the states have their Constitutional rights, and decide for themselves what marriage is and how to regulate it!

    • Jo Black

      The states have a Constitutional right, as long as it doesn’t infringe on the individual’s Constitutional right,

      “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

  • Kevin Rahe

    There is no rational reason to recognize the union of two people of the same sex. It is an entirely emotional appeal, and one which requires ignoring a huge element of human history to boot.

  • Mac Zeff

    We are a Nation of Nations. One of the first “super nations”. This is the gift the founding fathers gave us. Each state can have its own set of laws. We do not all have to be the same. The purpose of the federal government was to Govern the Governments (of the states of the union). Michigan and several other states, had their voting public decide the issue for their state. Michigan will not participate in a Non traditional marriage. I e. it will only participate in those those unions between a Man and a Woman. If you don’t like our laws, move to another state that allows it. Our state government lawmakers define words and their proper usage many times in many laws, and Michigan has done that when it defined marriage as a union between a man and a woman. It is their Constitutional authority to do so. Accept it.. or get over it..

    The GBLT group is trying to get the federal government to overstep its authority, and remove states authority. This is a clear violation of the public trust, the contract between the States of the Union and the Federal government.

    And the fact of the matter is, even if one state allows it, another does not, and WDC does, there are people in this country that will NEVER accept it nor will recognize a gay marriage as anything but another perversion imposed on the people by the police state.

  • Mac Zeff

    I think this needs to be said.. The GBLT community needs to show some appreciation for the fact that they live in this country. Other countries Imprison them, Burn them alive, stone them, hang them, or other in other ways kill them. Ya don’t see any Christians cutting off the heads of GBLT people in this country and they should be thankful for that.

    • Brandon

      I know this is a late reply, and arguably an irrelevant one considering marriage has been extended to same sex couples nationwide, but your comment needed to be addressed.

      Your argument is that in OTHER countries, gay people are murdered, therefore we, “the gays”, should be thankful we live in a country that allows us to carry on WITHOUT being decapitated. I mean, really?

      Using your logic, African Americans should’ve stopped complaining after their emancipation and should’ve just been grateful they were no longer slaves, despite segregation.

      No, I’m not comparing slavery or civil rights for blacks to the marriage debate, but rather pointing out the huge flaw in your logic of “it’s good enough, be thankful you’re not murdered.”

      This is the United States. We don’t settle. We don’t extend rights to citizens but stop halfway from full-on legal protections because “it’s good enough”.

      Anyway, like I said, it’s kind of a moot point now since your side was completely obliterated in court after court, from state to state. Some argue this wasn’t a decision that SCOTUS had any business making, but I would argue this wasn’t an issue the general public had any business deciding on, despite the fact that public opinion shifted in our favor long before the Obergefell decision.

      We don’t vote on rights. That’s not how this country works. We are not a democracy. We are a Democratic Republic with different branches of government serving the people.

      We have amendments that, while not foreseeing something like same sex marriage when written, WERE written as a foundation of how to approach situations like this very case.

      No right was discovered. It was affirmed. I’m grateful to live in a country like THAT, where I was finally able to marry my husband after 11 years together.

  • Godisfor1man1woman

    LG cannot be allowed to get married. It would be a mockery of God and his word. God would judge this country should this be allowed. Disgusting and horrible abomination

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