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Supreme Court To Decide Whether States Can Ban Same-Sex Marriage


The U.S. Supreme Court, after dodging the question of same-sex marriage this fall, has finally entered the fray. Today, the justices agreed to review historic cases from four states, testing whether they have the right to outlaw gay marriage. Put another way - the question is whether the Constitution's guarantee to equal protection of the law protects the rights of same-sex couples to marry.

NPR legal affairs correspondent Nina Totenberg joins now. Hi there, Nina.


CORNISH: Both sides have really been waiting breathlessly for this moment for a while now. What can you tell us about these cases that the court's agreed to hear?

TOTENBERG: Well, the cases are from Ohio, Michigan, Kentucky and Tennessee. The lower courts initially struck down the marriage bans in each of these states, but a panel of the Sixth Circuit Court of Appeals, based in Cincinnati, reversed those judgments and upheld the bans.

CORNISH: So why did the court decide to hear the question now, though, when it rejected the issue last fall?

TOTENBERG: Well, because last fall there was no conflict among the lower federal courts of appeal. All of them had ruled that bans on same-sex marriage violate the Constitution. And then, when the Sixth Circuit ruled, there became a conflict.

CORNISH: So when will the justices actually hear arguments in the case?

TOTENBERG: In late April. They've ordered 2.5 hours of argument on two questions - first, whether the bans are constitutional, and second, if they are, whether those states must nonetheless recognize same-sex marriages that are legally performed in other states.

CORNISH: So let's step back here, Nina. Remind us what the status quo is and where gay marriage is legal and where it's not.

TOTENBERG: It's legal in 36 states, Audie, and the District of Columbia. And many of those states are the most populous in the country, so that the Williams Institute at UCLA estimates that 70 percent of Americans now live in states where gay marriage is legal.

CORNISH: So the people behind these lawsuits, who are they? What can you tell us?

TOTENBERG: Well, all I can say is that they look like the perfect poster children for gay marriage. The lead plaintiff in Michigan, for instance, is a couple - two women who have adopted three children with disabilities. They're both nurses. They work split, 12-hour shifts to care for their children and also welcome foster children into their home. But because Michigan bans same-sex marriage, the women cannot both be listed as adoptive parents.

In Ohio, the lead plaintiff is widower James Obergefell, whose partner of more than 20 years, John Arthur, was diagnosed with Lou Gehrig's disease. And in the last months of Arthur's life, the couple chartered a medical plane to Maryland, and they got married on the tarmac. But when death came, Ohio refused to recognize the marriage, meaning that Obergefell could not be listed on the death certificate as the surviving spouse. And that's a failure that can have significant legal and financial consequences.

And then another of the Ohio plaintiffs is a same-sex couple who married in New York and lived there. When they adopted a child from Ohio, however, the state would not list both of them on the adoption certificate as parents.

CORNISH: Before we go, when should we actually expect a decision?

TOTENBERG: I think we will have a decision before the end of June, which leaves the justices not a huge window, but they'll make it. They've been thinking about this for a while.

CORNISH: That's NPR legal affairs correspondent Nina Totenberg on the Supreme Court's decision to rule this term on same-sex marriage. Nina, thank you.

TOTENBERG: Thank you, Audie. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.