5 Things You Need to Know About Same-Sex Marriage and the Supreme Court

A brief visual guide to the Supreme Court’s most anticipated case.
(Photo: Javier Galeano/Reuters)
Apr 22, 2015· 3 MIN READ
Jamilah King is a TakePart staff writer covering the intersection of race/ethnicity, poverty, gender, and sexuality.

Same-sex marriage is heading to the U.S. Supreme Court—again. On April 28, both sides of the issue will argue their cases so the Court can decide once and for all whether every state must recognize same-sex unions. It’s the pinnacle of a fight that’s lasted nearly two decades and has been waged by LGBT advocates to gain legal legitimacy. Along the way, the American public has become much more accepting of same-sex couples. But that acceptance has led to a patchwork of laws across the states. For example, same-sex couples in California were legally allowed to wed for several years in the mid-2000s before it was outlawed by Proposition 8 in 2008, and then restored again in 2013.

At stake now are the legal rights of hundreds of thousands of same-sex couples who live in states that currently don’t recognize their unions.

Meet the Couple That Started It All

Think we’ve been here before? You’re right—sort of. Consider the story of Edie Windsor and Thea Spyer, a lesbian couple who were together for more than 40 years. Spyer died in 2009, and Windsor was ordered to pay $363,000 in estate taxes mainly because the federal government didn’t recognize their union. Under the government’s Defense of Marriage Act, same-sex married couples were excluded from numerous federal provisions, such as filing joint tax returns and accessing a spouse’s veteran benefits. Windsor filed suit in 2010, and the case wound up before the Supreme Court. In 2013, the Court ruled in Windsor’s favor and declared DOMA unconstitutional. For the first time, the federal government recognized same-sex marriages.

Edie Windsor (left) and Thea Spyer. (Photo: Courtesy EdieWindsor.com)

37 States and D.C. Recognize Same-Sex Marriage

(Illustration: Freedom to Marry)

While the Supreme Court’s 2013 ruling on DOMA was indeed a landmark decision, it didn’t settle the issue. Crucially, the court allowed states to decide whether to recognize same-sex unions. Some states, such as Michigan, Ohio, Kentucky, and Tennessee, upheld state bans on same-sex marriage. And cases from those four states are what the Supreme Court will rule on in the coming months.

Same-Sex Marriage’s Unlikely Hero on the Court

Supreme Court Justice Anthony Kennedy. (Photo: Chip Somodevilla/Getty Images)

Interestingly, Supreme Court Justice Anthony Kennedy has emerged as an unlikely hero in the fight for same-sex marriage rights. The Supreme Court is made up of nine justices who are appointed by the president and serve lifetime tenures. Their rulings are generally viewed as being an extension of the president who appointed them. Ronald Reagan appointed Kennedy to the Supreme Court in 1988. He has been reliably conservative but generally in favor of the rights of same-sex people. In 1996, he wrote in an opinion that a Colorado antidiscrimination law makes “gays unequal to everyone else.” In the 2013 DOMA case, Kennedy wrote the court’s majority opinion, writing: “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”

Mary Bonauto and Douglas Hallward-Driemeier. (Photos: GLAD; Ropes & Gray)

The Lawyers Arguing to Legalize Same-Sex Marriage

Mary L. Bonauto is an attorney who has long argued in favor of same-sex marriage. She lives in Maine, where she worked with that state’s legislature to pass a law legalizing same-sex marriage. Bonauto will argue that all states must recognize same-sex unions. Douglas Hallward-Driemeier is a former United States assistant solicitor general who previously handled Supreme Court litigation for the U.S. Department of Justice. He’ll argue a separate issue: that states must recognize same-sex unions performed outside of their borders. He’s currently a partner at Ropes & Gray, one of the country’s biggest law firms.

And One of the Lawyers Against It

John J. Bursch. (Photo: WNJ LLC)

This is former Michigan Solicitor General John J. Bursch. He will argue against Bonauto’s case that all states must recognize same-sex unions. Joseph Whalen, an associate solicitor general from Tennessee, will argue against Hallward-Driemeier’s case that states must recognize same-sex unions performed elsewhere.

The Supreme Court is expected to make a decision in June, when its session closes.