By Melissa Myers and Michael J. Tucker, May 2015 Issue.
Melissa Myers:So, the U.S. Supreme Court will hear arguments in the same-sex marriage cases April 28.
Michael J. Tucker: Yes, and a decision is expected in June or July.
Myers:What will they actually do on April 28?
Tucker: They’ve allotted 90 minutes for arguments on the power of a state to refuse to allow same-sex marriages, along with one hour for arguments on whether a state can refuse to recognize existing marriages from other states.
Myers:Which lawyers will get to argue?
Tucker: Each side will get half the time allotted to each issue. Supporters of same-sex marriage will share 15 of their 45 minutes on the first issue with the U.S. Solicitor General, who will appear as a friend of the court in the case, taking sides on behalf of the federal government in favor of the same-sex couples.
Myers: Wait, so who is on the side of opposing same-sex marriage recognition?
Tucker: The federal court of appeals for the Sixth Circuit has ruled that states have the power to ban same-sex marriage. Ohio, Michigan, Kentucky, and Tennessee are the states in the Sixth Circuit. In the appeal to the Supreme Court, the attorneys general of those states are defending their states’ respective prohibitions on same-sex marriage.
Myers:So, this is the case that created the “split in the circuits.”
Tucker: Yes. All the other federal circuit court decisions have overturned state bans on same-sex marriage. The Sixth Circuit case was the first circuit court opinion to uphold state laws against same-sex marriage.
Myers:What will happen if the U.S. Supreme Court decides that same-sex marriage bans are unconstitutional?
Tucker: Well, in that case, the remaining 13 or 14 states that do not yet recognize same-sex marriages will be obligated to do so.
Myers:Then there would be uniformity across the nation in terms of same-sex marriage recognition under the law.
Tucker: Effectively, yes. Not just prospectively, either. When a court finds a law to be unconstitutional, then the court ruling overturning the unconstitutional law has retroactive effect.
Myers:So, the existing marriages of same-sex couples living in non-recognition states would be retroactively effective if the Supreme Court rules that same-sex marriage prohibitions are unconstitutional.
Tucker: That’s the anticipated result, and the interests of business and government are strongly aligned with those who would argue that same-sex marriage should be legal in all 50 states.
Myers:Naturally. It’s just easier and cheaper to govern and to do business if nobody has to slow down to figure out whether the marriages of particular customers or citizens are legal for one purpose or another.
Tucker: Meanwhile, it’s certainly possible that the Supreme Court will uphold the Sixth Circuit decision.
Myers:Would that throw the validity of same-sex marriages across the country into doubt?
Tucker: Possibly, depending on how the Supreme Court decides the case. The high court certainly has the power to decide this case in a way that would overturn all the prior federal court decisions upholding same-sex marriage rights in more than 30 different states.
Myers:That would be a chaotic result.
Tucker: It’s difficult for me to imagine that the high court will turn back the clock at this late date.
Myers:Court watchers will be in front of their computers on April 28 as bloggers follow the oral argument blow by blow. Stay tuned.
Editor's Note: This material has been provided for general informational purposes only and does not constitute either tax or legal advice. Investors should consult a tax or legal professional regarding their individual situation. Neither Camelback nor Commonwealth offers tax or legal advice.
