Same-Sex Marriage—The Other Shoe

After the Supreme Court struck down the federal Defense of Marriage Act in U.S. v. Windsor, Justice Scalia said the invalidation of state laws limiting marriage to one man and one woman was all but inevitable.

He also predicted that the “state-law shoe” would be dropped soon. He was right… at least about the other shoe.

Although the Supreme Court initially appeared reluctant to decide the issue on a nationwide basis, on April 28 the justices will finally consider the validity of state same-sex marriage bans.

The court rejected cases challenging similar state bans on the opening day of its 2014 term. 


And it later refused to stay federal appellate court decisions striking down such bans.

That’s likely because the vast majority of state and federal courts considering these bans had agreed that they violated the Constitution—including all four federal appellate courts that had considered the issue.

But when the Sixth Circuit handed down its conflicting decision—upholding anti-same-sex marriage laws in Michigan, Kentucky, Ohio and Tennessee—the Supreme Court decided to enter the fray.

The two-and-a-half hour argument will address two issues: whether states have to allow same-sex marriages and whether states have to recognize same-sex marriages from other states.

Bloomberg BNA’s Kimberly Robinson and Patrick Gregory survey the sea change that occurred after the Supreme Court’s blockbuster decision in Windsor, explain the issues likely to dominate the oral argument, and highlight important considerations for likely swing-Justice Anthony Kennedy in this podcast.

Keep up with the most significant cases and Supreme Court developments with a free trial to United States Law Week.