Supreme Court Grants Cert to Decide Same-Sex Marriage Case

On January 16, 2015, as widely anticipated, the Supreme Court granted certiorari to hear the Sixth Circuit same-sex marriage cases arising out of Kentucky, Tennessee, Ohio, and Michigan. 

The cases are now consolidated, and the petitions for writs of certiorari are granted limited to the following questions: (1)Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?; and (2) does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

By framing the issues in terms of state requirements rather than in terms of the rights of the parties, the Court leaves open whether the case will be treated primarily as a substantive due-process case addressing the fundamental right to marry the person of one’s choice (as in past marriage cases), an equal-protection case, or as a hybrid “equal liberty” combination of the two. It is possible that a record number of amicus briefs will be filed in this historic case.

— Nancy Marcus, LL.M., S.J.D., Assistant Professor of Law, Indiana Tech Law School

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