SAME-SEX MARRIAGE: FEDERAL POWER, STATE POWER, AND WHY KIM DAVIS WENT TO JAIL

Same-sex marriage 1993: Hawaii Supreme Court rules that forbidding same-sex couples to marry is unconstitutional sex discrimination under the equal rights provisions of the state constitution. This did not explicitly legalize same-sex marriage.

SAME-SEX MARRIAGE 1996: Congress passes the Defense of Marriage Act, prohibiting federal recognition of same-sex marriages and allowing states to refuse to recognize same-sex marriages which were legal elsewhere (although no state had actually legalized it yet). 2013: The Supreme Court strikes down the DOMA ban on federal recognition of same-sex marriages. This gives legally married couples federal benefits like filing joint tax returns.

SAME-SEX MARRIAGE Beginning in Massachusetts in 2004, 16 states and the District of Columbia legalized same-sex marriage either through referenda or through court decisions which found that restricting marriage to heterosexual couples was unconstitutionally discriminatory.

SAME-SEX MARRIAGE In 2014, several U.S. Circuit Courts (including the 4th Circuit, which covers SC) struck down state bans, and the Supreme Court declined to hear the appeal, making same-sex marriage explicitly or implicitly legal in a total of 36 states. The 6th Circuit upheld the Ohio state ban, and the Supreme Court took the case to resolve the conflict between the lower courts’ decisions.

Fourteenth Amendment to the U.S. Constitution (1868) Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

Obergefell v. Hodges (2015) Fourteen same-sex couples who were denied marriage licenses, and two men who were denied survivors’ benefits when their partners died, sued the states of Michigan, Kentucky, Ohio and Tennessee, which are in the 6th Circuit and where the state bans were still in effect.

Equal Protection Clause and State Authority Even in areas where the states, not the federal government, have legal authority, the states must administer their own laws equally. Public education is a state, not federal, responsibility. Brown v. Board of Education (1954): The U.S. Supreme Court ruled that legally required racially segregated schools were a violation of the Equal Protection Clause (“separate but equal is inherently unequal.”)

Equal Protection Clause and State Authority The 21st Amendment, which repealed Prohibition, gave states the authority to regulate alcohol. Craig v. Boren (1976): Oklahoma had a drinking age of 18 for women and 21 for men. Statistically, in this age group, men are far more likely than women to drink and drive. The distinction was made in the interests of highway safety. The Supreme Court ruled that this violated the Equal Protection Clause.

Obergefell v. Hodges (2015) The U.S. Supreme Court ruled that the Equal Protection Clause grants the same right to marry to same-sex couples that heterosexual couples have. This struck down the remaining state bans on same-sex marriage. (These laws remain on the books until they are actually repealed by legislative action or referendum, but they are unenforceable). Same-sex marriage is now legal throughout the United States.

Miller v. Davis

Miller v. Davis In Kentucky, the county clerk (an elected position) is responsible for issuing marriage licenses. Rowan County Clerk Kim Davis objected on religious grounds to issuing marriage licenses to same-sex couples, and claimed that requiring her to do so violates her First Amendment right to free exercise of religion. Her office then refused to issue marriage licenses to anyone. In July 2015, four couples (two gay, two straight) who were denied licenses by her office sued. The U.S. District Court for the Eastern District of Kentucky ordered her to issue the licenses. She appealed and the Supreme Court upheld the district court’s ruling.

Miller v. Davis If she refused to issue marriage licenses only to same-sex couples, she would be violating the Equal Protection Clause. If she refused to issue marriage licenses to anyone, she would be failing to perform the legally required duties of her office, which is a violation of state law for which she may be impeached.

Miller v. Davis Davis continued to refuse to issue licenses and the federal district court found her in contempt. The U.S. Supreme Court upheld this finding. She served five days in jail in August 2015. She was released on condition that she not interfere with the deputy clerks in her office issuing marriage licenses.

Miller v. Davis During her imprisonment, the deputy clerks in her office (with the exception of her son) began issuing licenses. The forms were changed so that the clerk’s name no longer appears on them. This was later adopted on a statewide basis to accommodate clerks who have religious objections to same-sex marriage. The Governor of Kentucky argued that these licenses were legally binding even though they didn’t have the County Clerk’s name on them.

And if marriage is legal, Do same-sex couples have the same rights as heterosexual couples to adopt children? May 2016: Mississippi ban struck down, now legal in all 50 states April 2017: Kentucky judge refused to finalize adoptions by same-sex couples, based on a belief that being adopted by a gay couple is not in the child’s best interests; the judge has since announced his retirement. Remember that even though laws remain on the books, if they’re unconstitutional, they’re unenforceable. Conversely, a finding that a law is unconstitutional doesn’t remove it from the text of the state code.