January 23, 2015 Practice Points

Supreme Court Grants Cert to Decide Same-Sex Marriage Case

It is possible that a record number of amicus briefs will be filed in this historic case.

By Nancy Marcus – January 23, 2015

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


Copyright © 2015, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).