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10 Questions and Answers About the Same-Sex Marriage Case

Today’s a big day for gay couples and their families at the United States Supreme Court. The outcome of the case in front of the court will directly affect many of us. Here’s a quick primer on the latest big marriage equality case to hit the nation’s top court.

1. What’s the case?

The case in front of the court has the unassuming name of Obergefell v. Hodges. It bundles together plaintiffs from the four states -- Michigan, Ohio, Tennessee and Kentucky -- where a federal appeals court judge ruled last year against the right of same-sex couples to marry. It will be argued for 2½ hours in front of the court today.

2. Why is it important?

This is the case that could ultimately bring marriage equality to the entire United States. While most federal courts across the country have ruled in favor of the right of gay people to marry, the Sixth Circuit didn’t agree. The Supreme Court will resolve the conflict.

The road to Obergefell has been a long one. Nearly three decades ago, in Bowers v. Hardwick, the court ruled that gay sex could still be criminalized. Lawrence v. Texas, 11 years ago, finally overturned the sodomy bans than Bowers upheld. And two years ago, United States v. Windsor overturned part of the Defense of Marriage Act, which forbid the federal government from recognizing same-sex marriages performed by the states.

3. What are the arguments?

The arguments in favor of same-sex marriage are simple, and are likely familiar to Gays With Kids readers. Advocates argue that marriage is fundamental right that can’t be denied to a class of people, such as gays and lesbians. The lack of equal access to the institution makes everyday life difficult for same-sex couples who don’t have the legal bonds (property, insurance, health care, child custody) that straight couples take for granted.

Arguments against same-sex marriage boil down to the notion that marriage, by its nature, can only exist between a man and a woman, and is meant to ensure stable biological families. And while, these activists say, individual states have the right to change their laws through the democratic process, federal courts shouldn’t dictate that all states offer same-sex couples the right to marry.

4. What are the goals?

For those on the pro gay marriage side, there are ambitious goals. The first, and most basic, is to extend marriage rights across the entire country. The Supreme Court will actually be answering two questions, both of which will be argued today. Amy Howe at ScotusBlog describes them this way: “The first is what most people refer to as the ‘marriage question' – whether states can ban same-sex marriage.  The second is the ‘recognition question' – whether states like Ohio can refuse to recognize the marriages of same-sex couples, like Jim Obergefell and John Arthur, who were legally married in another state.” A yes to either of those questions will essentially legalize gay marriage across the country, but advocates hopes the court says yes to both.

More broadly, the Supreme Court has consistently refused to establish gay and lesbian people as a protected class. Such a designation would carry tremendous weight, and possibly set the stage for further rulings protecting gay people from discrimination.

5. How are gay parents and their families involved?

They’re intimately involved. Two of the plaintiffs, April DeBoer and Jayne Rowse, live in Michigan and cannot jointly adopt their children. Thus, each woman has custody of different children, who also aren’t able to be covered under the same health insurance plan. Justice Anthony Kennedy, who is considered the main swing vote on gay-rights issues, focused on the children of same-sex families in his Windsor decision.

He wrote that the Defense of Marriage Act "humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives."

That’s one of the reasons both pro- and anti-gay marriage forces have talked often about families in the leadup to today’s arguments. A handful of adult children of gay parents have even argued against extending the right to same-sex couples. Such anecdotal appeals aren’t worth much as science, of course. A recent study from the University of Melbourne in Australia actually found that kids of gay parents did better than other children in the wider population.

6. What will the court decide?

Most observers expect that Justice Kennedy will lead the court to establish some sort of national right to same-sex marriage, likely by a 5-4 vote. That being said, no one has a clear idea if the ruling will be broad and sweeping, or more narrowly tailored. The reactions of the justices to the arguments today will suggest where they might be heading. In the past, the court has preferred to rule relatively narrowly on gay-rights issues, answering only the immediate, pressing questions and leaving broader ones for future cases.

7. When will the court decide?

The U.S. Supreme Court does not usually work quickly. The ruling in this case will come down before the end of its term, in late June. Yes, that’s a whole two months away, and the court tends to take its time with complicated or politically important cases. That gives the justices time to debate and write their opinions.

8. What’s the worst-case scenario?

It might be unpleasant to dwell upon, but the Supreme Court has upended expectations before. If it rejects plaintiff’s claims in this case, years of litigation and confusion would follow. Most problems would be found in the 22 states where same-sex marriage was legalized through a court order. Observers disagree if an adverse ruling from the high court would instantly shut down marriages in those states. Another question: What would the legal status be for couples that married in those states? Would their unions be null and void?

That’s why legal experts tell same-sex couples to be careful, according to the Washington Post: “Lawyers tend to recommend a cautious path for same-sex couples. … As a result, lawyers suggest that couples have power-of-attorney paperwork in place to ensure their ability to make decisions for each other in an emergency. And they recommend that gay non-biological parents formally adopt their children -- even if the parent’s name already appears on the child’s birth certificate.”

9. How does this affect the presidential election?

For the first time, gay marriage is being used as a political weapon against Republican Party candidates. The question “Would you attend a gay wedding?” has become routine on the campaign trail. And while all of the candidates on the GOP side remain opposed to same-sex marriage, they have also tried to moderate their tone.

Why would they do that? Public opinion has shifted remarkably quickly to overwhelming support for same-sex unions. According to a Quinnipiac University poll released April 27, “American voters support same-sex marriage 58 - 34 percent, with strong support from every party, gender and age group except Republicans, who are opposed 59 - 33 percent, and voters over 55 years old, who support same-sex marriage by a narrow 48 - 43 percent.”

10. What remains to be done?

A lot. Assuming the court rules in the way that most expect – legalizing gay marriage across the country, but in a relatively modest way that still refuses to consider LGBT people as a protected class – nondiscrimination laws will be the next goal.

Only 22 states protect gays and lesbians, and three of those states don’t extended rights to transgender people. That means that it’s entirely legal to deny public accommodations and housing to gay people in a staggering number of states across the country. Most people don’t realize this. A poll last year showed that 62 percent of people thought that federal law already offered these protections.

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The Child-Parent Security Act, which legalizes commercial surrogacy in New York State, was included in the 2020 New York State Budget signed by Governor Cuomo

Yesterday, a years-long battle about the state of compensated gestational surrogacy came to an end in New York when the Governor signed into a law the Child-Parent Security Act in the 2020 as part of the state budget.

The effort stalled last year after opponents, including several Democrats, successfully argued that the bill didn't go far enough to protect women who serve as surrogates — even though it included a surrogate "bill of rights," the first of its kind in the country, aimed at ensuring protections.

"Millions of New Yorkers need assistance building their families — people struggling with infertility, cancer survivors impacted by treatment, and members of the LGBTQ+ community," the Family Equality Council said in a statement about the victory. "For many, surrogacy is a critically important option. For others, it is the only option. Passage of the Child-Parent Security Act is a massive step forward in providing paths to parenthood for New Yorkers who use reproductive technology, and creates a 'surrogate's bill of rights' that will set a new standard for protecting surrogates nationwide."

Opponents, led by Senator Liz Krueger, had once again attempted to torpedo legalization efforts this year by introducing a second bill that would legalize surrogacy in New York, but also make it the most restrictive state in the country to do so. "A bill that complicates the legal proceedings for the parents and potentially allows them to lose their genetic child is truly unfortunate," said Sam Hyde, President of Circle Surrogacy, referencing to the bill's 8-day waiting period. He also took issue with the bills underlying assumptions about why women decide to serve as a surrogate. The added restrictions imply that "they're entering into these arrangements without full forethought and consideration of the intended parents that they're partnering with," he said.

The bill was sponsored by State Senator Brad Hoylman, an out gay man who became a father via surrogacy, and Assemblymember Amy Paulin, who has been public with her experiences with infertility.

"My husband and I had our two daughters through surrogacy," Holyman told Gay City News. "But we had to travel 3,000 miles away to California in order to do it. As a gay dad, I'm thrilled parents like us and people struggling with infertility will finally have the chance to create their own families through surrogacy here in New York."

"This law will [give intended parents] the opportunity to have a family in New York and not travel around the country, incurring exorbitant costs simply because they want to be parents," Paulin said for her part. It will "bring New York law in line with the needs of modern families."

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