To date, the U.S. Supreme Court has declined to rule on the constitutionality of state laws banning same-sex marriage. Even in the U.S. Supreme Court’s landmark decision in U.S. v. Windsor (discussed here), the U.S. Supreme Court left to the states the authority to define and regulate marriage. In addition, as recently as October 6, 2014, the U.S. Supreme Court issued orders declining to review appeals regarding same-sex marriage in five states (Indiana, Oklahoma, Utah, Virginia, and Wisconsin). Consequently, same-sex married couples and state-sanctioned partners have been left to navigate a complex legal environment in which their marriage or partnership is recognized in some states (albeit an ever-growing number of states) and not others. Such irregular treatment among the states gives rise to complex estate and income tax planning and, at times, is so detrimental that it limits the states in which it is financially advisable for such couples to live.
Justice Ruth Bader Ginsburg publicly commented that the U.S. Supreme Court has not ruled to this point on the constitutionality of same-sex marriage, in part because the courts of appeals have not split on the issue. That is, until now.
Earlier this month, the U.S. Court of Appeals for the Sixth Circuit became the first federal appeals court to uphold same-sex marriage bans. Specifically, the Sixth Circuit’s decision upholds same-sex marriage bans in Ohio, Michigan, Kentucky, and Tennessee, and thereby marks a stark split from the decisions of federal appeals courts in the Fourth, Seventh, Ninth, and Tenth circuits, each of which has struck down similar bans on same-sex marriage.
Given this split in the courts of appeal (and assuming the Sixth Circuit decision is appealed directly to the U.S. Supreme Court), the Supreme Court will likely review the Sixth Circuit decision and rule on the constitutionality of same-sex marriage bans by the states once and for all.