(As seen on WZZM TV 13) On April 28, the U.S. Supreme Court will hear arguments regarding whether same-sex marriage is a constitutional right and should be extended to couples in all 50 states.
Four cases from the country’s Sixth Circuit Court of Appeals are at the heart of the hearing. Those cases — from Michigan, Ohio, Tennessee and Kentucky — have been consolidated and deal with two separate issues. The Michigan case, Deboer v. Snyder, deals with the issue of same sex-marriage, while the other three cases, Tanco v. Haslam, Obergefell v. Hodgesand and Bourke v. Beshear, deal with whether states must recognize same-sex marriages performed in other states.
“The court is going to be looking at two issues: Does the Constitution require that states have to permit same-sex couples to get married, and does the Constitution require these states to recognize the legal marriages of same-sex couples who got married out of state,” explained Jay Kaplan, ACLU Michigan attorney. “That’s what the court will be deciding.”
Attorneys Mary L. Bonauto and Doug Hallward-Driemeier will represent the plaintiffs in the cases, and former Michigan Solicitor General John J. Bursch, who resides in Grand Rapids, and Joseph L. Whalen, an associate solicitor general for Tennessee, will represent the four states.
Bonauto and Bursch will argue the first question: whether states are required by the Constitution to allow same-sex marriage. Hallward-Driemeier and Whalen will argue the second question: whether states must recognize legal marriages from other states.
The Supreme Court is expected to announce its decisions on both issues in June. If the Supreme Court decides in favor of the plaintiffs, same-sex marriage will immediately extend to all 50 states.
“That means businesses, if they offer spousal benefits in terms of insurance, family medical leave (and) bereavement leave, will have to recognize same-sex couples who are legally married,” Kaplan said.
He noted many businesses already offer spousal or partner benefits to same-sex couples. Those businesses may need to make some adjustments within their human resources department and policy documents, but likely those changes will ease burdens on those employers already offering same-sex benefits.
Businesses not currently offering same sex benefits may need to make minor policy and document changes, as well.
“What is going to be the major change will be the state of Michigan,” Kaplan said. “I think there will be more of a need to make changes to practices and procedures by the state government as opposed to employers.”
The state of Michigan already recognizes 300 marriages that took place more than a year ago during the short window of time between when Michigan’s same-sex marriage ban was struck down by Federal District Court Judge Bernard A. Friedman and an emergency stay was put in place by the Sixth Circuit Court of Appeals.
Although the state agreed to recognize those marriages back in February, it was recently reported that one same-sex couple was having difficulty getting the health insurance coverage they should be eligible for because of a glitch in the Department of Human Services system that still would not allow them to be recognized as married.
DHS was able to fix the problem, but questions remain about whether the state will be prepared to marry and recognize same-sex unions if they become legal in June.
If same-sex marriage does gain legality across the country, several other legal issues are likely to arise.
Michigan’s Elliott Larsen Civil Rights law, for instance, does not include protections for LGBT individuals, which means they can be denied employment and housing based on their sexual orientation and gender identity.
If same sex marriage were to become legal in Michigan, someone could be fired if he or she attempted to access spousal benefits from an employer who opposes LGBT employees in his or her business.
Additionally, some Michigan legislators are still intent on passing a Religious Freedom Restoration Act law that, as currently proposed, could allow for discrimination by businesses against LGBT people seeking products or services, and could also gut local civil rights ordinances that have been passed by local communities to protect LGBT residents in the areas of housing and employment.
In addition to the RFRA bill, Michigan also has bills currently under consideration that would allow faith-based adoption and foster agencies to refuse to work with couples and individuals in situations that violate their religious beliefs, and another law that would allow medical personnel and hospitals to refuse to provide services that violate their religious beliefs.
These laws are believed by many to be in reaction to the possibility of countrywide same-sex marriage.
“I remain optimistic that it’s going to be a favorable decision for marriage equality,” Kaplan said. “I think that is why you are seeing some of this backlash in terms of the state legislatures introducing the RFRAs.”
Michigan Gov. Rick Snyder has said he opposes any stand-alone RFRA bill and will veto such a bill. He also said he would veto the RFRA bill applying specifically to medical personnel and hospitals, while the bill regarding adoptions is something he is willing to consider.
If the Supreme Court does decide in favor of the plaintiffs in June, the legal environment is likely to see a boon in LGBT-related legal challenges.
“I expect to see more lawsuits,” Kaplan said.