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Same-sex marriage ruling could affect R.I.

The Supreme Court could overturn R.I.’s civil unions and determine if states can legalize marriage

As the national dialogue regarding same-sex marriage engulfs Rhode Island politics — including a marathon 12-hour hearing in the Senate Judiciary Committee two weeks ago — the Supreme Court heard a case last week that could render irrelevant the entire debate. For the first time in U.S. history, the Supreme Court is preparing to issue a decision about whether a state ban on same-sex marriage violates the Constitution.

The case dealt with whether Proposition 8, a voter referendum passed in California that reversed state judicial action allowing same-sex marriage, is unconstitutional. Legal experts may differ on the various ways the Supreme Court could rule, but they agree that the case has the potential to be a watershed moment for gay rights across the nation as well as in Rhode Island.

Rhode Island currently permits same-sex civil unions but not marriages. Civil unions provide the same rights and privileges to gay couples as marriages provide heterosexual couples under Rhode Island law.

Courtney Cahill, professor of law at Florida State University College of Law, wrote in an email to The Herald that the Supreme Court has five major options to consider when ruling on the case — two that directly affect Rhode Island. The Court could overturn Proposition 8 on the grounds that “marriage restrictions like it violate the federal Constitution on both equal protection and due process grounds,” Cahill wrote. In this instance, “all marriage restrictions in the United States will be struck down as unconstitutional, and same-sex marriage must be recognized nationally as a matter of federal constitutional law,” she wrote.

This outcome, though preferred by same-sex marriage advocates across the country, is also “the least likely,” Cahill wrote. Analyses of the oral arguments — held last Tuesday — in both the New York Times and the Washington Post echoed Cahill’s belief that the Court is more likely to issue a narrow ruling than one that requires all 41 states without same-sex marriage to adopt it.

The hearings arrived in the midst of a number of prominent endorsements of same-sex marriage from national leaders, adding to a sense, voiced in media and on television across the country by advocates of same-sex marriage, that the time is ripe for the federal government to extend the right to marry to gay couples. Two weeks before the Court heard the case, Sen. Rob Portman, R-OH, became the first Republican senator to endorse same-sex marriage since then-senator Gov. Lincoln Chafee ’75 P’14 endorsed same-sex marriage before he left office in 2007.

The Court could also rule that same-sex civil unions, which are offered in California and Rhode Island, are unconstitutional. This outcome — known as the “eight-state ruling,” because it would overturn civil union statutes in eight states — would not prevent those states that currently offer civil unions from passing laws that define marriage as between one man and one woman. States with civil unions could essentially nullify the effect of the Court’s ruling.

President Obama endorsed the “8-state ruling” in an amicus brief that his administration filed with the Court before the hearings.

These two rulings would both bring same-sex marriage to Rhode Island, but the Court has other plausible alternatives, including upholding the constitutionality of state bans on same-sex marriage.

The ambiguity regarding the Court’s decision led prominent critic of same-sex marriage in Rhode Island Bishop Thomas Tobin of the Roman Catholic Diocese of Providence to ask the state senate not to take up the issue until the question of constitutionality is settled. Advocates of same-sex marriage dismissed Tobin’s argument. “With all due respect to His Excellency, neither case before the Supreme Court has any bearing on the decision of the General Assembly to make marriage available to all loving, committed couples in Rhode Island,” said Reverend Gene Dyszlewski, chair of the Rhode Island Religious Coalition for Marriage Equality.

Besides upholding the constitutionality of Proposition 8, the Court could rule that “Proposition 8 was unconstitutional because it violated the federal Equal Protection Clause to give marriage rights and then take them away,” Cahill wrote.

The Court could also rule that “Proposition 8’s (legal) defenders lack standing under the federal Constitution to appeal this case to the Supreme Court,” Cahill wrote. This outcome would overturn Proposition 8, legalizing same-sex marriage in California but nowhere else. California’s governor declined to defend Proposition 8, aruing that it is unconstitutional. Former Federal District Court Judge Vaughn Walker, who originally overturned Proposition 8 before the case arrived at the Supreme Court, used this argument to justify his decision.

The Supreme Court also heard arguments in a case about the constitutionality of the Defense of Marriage Act, which established the federal definition of marriage as between one man and one woman. As a result gay couples who have received weddings in states that have legal same-sex marriage are not eligible to receive any federal marriage benefits, including the ability to file joint tax returns and receive health care coverage under a spouse’s plan, The Herald previously reported.


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