Last month, Texas issued its first legal same-sex marriage license – or maybe not.
There is still debate about the legality of the marriage. In response to issuing the license, Texas Attorney General Ken Paxton asked the Texas Supreme Court to void the marriage.
The Court has not ruled on the legality of the marriage, but it has ruled that other gay couples cannot marry in Texas. The fate of the couples’ marriage is still undecided.
This debate will likely continue until the U.S. Supreme Court issues their ruling on gay marriage this summer. U.S. v. Windsor, the case that struck down portions of the federal Defense of Marriage Act, will likely be a major influence in the Court’s decision.
The U.S. v. Windsor opinion contains two different arguments: equal protection and federalism. The equal protection argument would make federal law absolute in the area of marriage. On the other hand, the federalism argument would give states the final say on the definition of marriage.
The equal protection argument would offer protection to same-sex couples under federal law. Under the Fifth Amendment, every citizen could have the right to love and marry whomever they choose – regardless of sex. Should the Court apply this logic, gay marriage could be legalized not only in Texas, but across the entire country.
Meanwhile, the federalism argument would offer significant protection the states. Applying this logic would delegate the definition of marriage to the states, allowing each one to decide whether or not same-sex couples can be legally married within its borders. Essentially, the current status quo would be unaffected.
This split in logic in the Windsor decision is most likely due to the ideologically split court. The case was decided with at 5 to 4 vote. The Court will most likely decide which reasoning will be applied to future same-sex marriage cases with its expected ruling this June.
The Supreme Court’s Windsor opinion held two dueling arguments: equal protection and federalism. This June, the Court will most likely decide which argument to apply to future gay marriage cases. If it chooses equal protection, its decision could legalize gay marriage across the entire country. However, if it choses federalism, each state will have the ability to ban or legalize gay marriage individually. As for Texas, its first gay marriage could be affirmed or dissolved by the Court’s decision. Either way, the Court will definitely have the final say on gay marriage this summer.
