In 2013, the U.S. Supreme Court (SC), in United States v. Windsor, struck down certain provisions in the Defense of Marriage Act (DOMA), which resulted in the federal government recognizing those same-sex marriages granted in states that allowed such unions. Since then, many on both sides of the same-sex marriage debate have wondered when the SC would officially rule on whether there was a constitutional right to enter into a lawful same-sex marriage, regardless of whether a state permits such unions. Recently, many were excited to learn that the SC has agreed to hear four different state-based cases that centered on different but connected state and same-sex marriage legal questions and issues.

This year the SC will hear four different petitions from Tennessee, Ohio, Kentucky, and Michigan. However, what is unique about the SC's decision to hear these four petitions is the fact that the SC justices exercised their right to alter/frame the specific issues from each petition that they would address in their upcoming reviews. Oftentimes, the SC is willing to answer the questions presented on the face of a petition. However, the SC has exercised its discretion to tinker with the wording of the petitions before them in order to tailor the constitutional questions in each petition that they will be reviewing.

The Questions of Law Regarding Same-Sex Marriage

For the sake of judicial efficiency, the SC has divided the four petitions before them into two distinct cases, with separately scheduled arguments regarding both the right to marry, and also the right to subsequent recognition of marriages approved in other states. The first question will be presented in a 90-minute argument, and an hour will be used to present the second argument. In order to merge the four petitions into two cases, the questions presented on the face of the petitions were framed by the SC in the following way:

• The first questions asks: “Does the 14th Amendment require a state to license a marriage between two people of the same sex?”
• The second question asks: “Does the 14th 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?”

The SC's decision to alter the original questions of the four petitions has puzzled some who question the specific language employed. Some have noted the subtle shift in emphasis that the new language makes, which steers the conversation away from the rights of those seeking to be married, and towards the specific obligations that the 14th Amendment requires states to recognize, enforce, and protect. However, the new language still invokes the same issues of the original petitions, by still raising the questions of the 14th Amendment's guarantee of equal protection and due process.

Soon the SC could decide the most important family law decision of our generation. If you need Illinois family law advice or representation, contact the experienced Joliet family law attorneys at the Law Offices of Cosmo Tedone and Barbara Morton, P.C. today.