Focus on the Law: Same Sex Marriage

By Sharon Frankenberg,
Attorney at Law

As of the writing of this column on January 9, 2015, it is legal in 36 U.S. states and the District of Columbia for same-sex couples to marry. How did we get here? In many conservative states like Tennessee, the state legislatures have passed laws defining and limiting marriage as only between opposite sex partners. Same-sex couples have challenged this in federal courts as violating their constitutional rights to equal protection under the law. Many federal judges have agreed and struck down the state laws which prohibited the same-sex couples to marry. A federal judge in Florida just ruled last week that that state’s ban on same-sex marriage was unconstitutional. Florida officials will likely appeal that decision to the U.S. Court of Appeals for the Eleventh Circuit, their regional federal court of appeals. Meanwhile today, bans on same-sex marriage in Texas, Mississippi and Louisiana will be challenged in oral arguments before the Fifth Circuit Court of Appeals. Other regional courts of appeals had all agreed that bans on same-sex marriage are unconstitutional until the U.S. Court of Appeals for the Sixth Circuit broke ranks and decided DeBoer v. Snyder on November 6, 2014.

In the DeBoer v. Snyder case, a panel of three judges decided in a 2 to 1 decision that the Fourteenth Amendment to U.S. Constitution does not prohibit a State from defining marriage as a relationship between one man and one woman. Judge Sutton spoke for the majority against judicial activism when he said, “When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a social issue in a fair-minded way.”

The Justices of the U.S. Supreme Court will meet today to consider whether the Court will agree to review any or all of five cases concerning state law bans on same-sex marriage in Tennessee, Ohio, Michigan, Kentucky and Louisiana. This includes the DeBoer v. Snyder case. Their decision on whether to hear these cases is expected by the end of January in order for oral arguments to be held in the Spring and rulings to be made by June. The U.S. Court of Appeals for the Sixth Circuit, which includes Tennessee, Kentucky, Michigan and Ohio, upheld laws banning same-sex marriage. The U.S. Courts of Appeals for the Fourth, Seventh, Ninth and Tenth Circuits have struck down state law bans on same-sex marriage in their jurisdictions. The Supreme Court has previously declined to review decisions which found the ban on same-sex marriage unconstitutional. Now that there are conflicting decisions between the U.S. Circuits, the Justices may recognize a need to address the federal constitutional issues and implications and provide uniformity on the topic. If the Supreme Court takes up the issue of same-sex marriage this term, it will likely be the most high profile issue on the docket. Expect to hear more on this topic.

You should always contact an attorney to get advice and assistance with the facts of your particular situation. Sharon Frankenberg is an experienced attorney licensed in Tennessee since 1988. She is a sole practitioner who handles probate, foreclosures, landlord-tenant, collections and general civil matters. She represents Social Security disability claimants and represents creditors in bankruptcy proceedings. Her office is in Knoxville and she may be reached at (865)539-2100.

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