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It's Not Just Alabama—Gay Marriage Is Stuck in Limbo in These States

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It's Not Just Alabama—Gay Marriage Is Stuck in Limbo in These States
Takepart | By Eric Pfeiffer | March 4 2015

When the U.S. Supreme Court decided last month to allow same-sex marriages to move forward in Alabama after a federal court ruling that marriage bans targeting LGBT couples are unconstitutional, it appeared the Heart of Dixie had become a bellwether for the collapsing opposition to marriage equality.

However, on Tuesday the Alabama Supreme Court took the nearly unprecedented step of telling judges to go ahead and ignore the federal ruling, putting at least a temporary halt to same-sex marriages in the state.

The decision has created an air of uncertainty in Alabama and left both marriage-equality opponents and advocates wondering if a similar strategy could be employed in states across America that are grappling with their own debates over the issue.

In an interview with TakePart, Adam Romero, senior counsel and Arnold D. Kassoy scholar of law at UCLA’s Williams Institute, explained how the decision affects same-sex couples in Alabama and whether residents of other states should anticipate similar rulings before the Supreme Court weighs in on the issue later this year. The Williams Institute is a leading researcher on LGBT issues.

“The probate judges are now stuck between a rock and a hard place between the federal court’s ruling that the Supreme Court allowed to go into effect and now the Alabama Supreme Court rule,” Romero said. “I think what we’re going to see happen in Alabama is that the parties in the federal cases will be going back to the federal judge to seek more relief.”

The South Rises Against

The Fifth Circuit Court of Appeals, which covers Mississippi, Texas, and Louisiana, heard oral arguments in January for overturning same-sex marriage bans. The three-judge court is considered split on the issue, with one judge each firmly planted in the “for” and “against” columns.

However, Judge Patrick Higginbotham, an appointee of former President Ronald Reagan, appeared to tip his hand in favor of marriage-equality proponents after pressing state attorneys on their arguments against same-sex marriage.

“You don’t need an incentive to have sex,” the 77-year-old judge said to audible laughter in response to a claim that opposite-gender marriage in Mississippi is essential to encouraging couples to have families.

No Middle Ground in the Midwest

Covering Nebraska, North Dakota, South Dakota, Missouri, Arkansas, and parts of Iowa and Minnesota, the Eighth Circuit Court of Appeals is expected to hear arguments in May appealing a judge’s decision to overturn Nebraska’s ban on gay marriage.

Romero says that if the Eighth Circuit rules that same-sex marriage bans are unconstitutional, it could create another “scuffle” between state and federal courts over whether to allow same-sex marriages to proceed.

The Law of the Land

Regardless of what happens at the state level, Romero says the debate is likely to be a short-lived one.

“All of this is sort of temporary scuffling amongst the courts,” he said. “Ultimately, the Supreme Court will decide this issue once and for all, most likely in June.”

The potential outcomes are that stark. If the Supreme Court rules against the constitutionality of same-sex marriage bans, that would effectively make marriage equality legal in all 50 states. Similarly, if marriage bans are upheld, that would allow states that have passed bans to continue enforcing them. However, states that do not have bans in effect could continue to allow same-sex marriages to continue.

“That said, the legal rights that are at stake are momentous, where one of the partners is on her deathbed,” Romero said. “These are real, tangible issues that same-sex couples may experience while waiting for a Supreme Court ruling.”

So how will the court rule? Many observers, including Romero, say its decision to allow lower court rulings permitting same-sex marriages to move forward point toward the court ruling against the constitutionality of marriage bans.

“In many regards, the Supreme Court let the genie out of the bottle, legally speaking,” Romero said. “The genie won’t be going back into the bottle very easily.”

Romero added that he doesn’t expect other states to follow Alabama’s lead, though he added Mississippi could provide one exception. After all, not only would it be highly unusual for a state court to defy a federal court ruling, but in the case of Alabama it brings to mind one other painful instance in which the state acted in defiance of a federal discrimination ruling.

“One can’t but help but understand this is the context of Alabama’s history of refusing to follow federal decision on racial integration,” Romero said. “And ultimately the federal court’s decision in that instance prevailed.”

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