1) OK, let’s start with the basics. Very simply, what is the constitutional explanation for why same-sex couples in Massachusetts can get married but why same-sex couples in Texas can’t? Why is the law different in different states?
SHAW: States have a lot of freedom to structure their laws in ways that reflect the preferences of their citizens; that’s one of the unique features of our federal system. Some states can allow 16-year-olds to drive while others set the driving age at 18; and some states have the death penalty, while others don’t.
But the principle that each state can tailor its laws to its citizens’ preferences has limits, and those limits come from the U.S. Constitution. The Supreme Court has made clear, for example, that the Constitution prevents states from prohibiting interracial marriage. So the question in this case is whether prohibiting same-sex couples from marrying is within the states’ regulatory power, or whether it violates the U.S. Constitution.
2) Got it, so how many states in the United States currently allow for same-sex marriage? What’s the story with D.C. and Alabama?
SHAW: Right now, 36 states and D.C. allow same-sex couples to marry. Alabama’s situation is unique: Earlier this year, a federal judge found the state’s ban on same-sex marriage unconstitutional, but the Alabama Supreme Court then ordered Alabama officials to stop performing same-sex marriages. A number of couples got married in the period between the federal and state court decisions, but right now no new same-sex marriages are being performed in that state.
3) Remind us why there was a rapid increase in the number of states that allow for same-sex marriage in recent years. What happened in the courts?
4) OK, so what exactly is happening Tuesday at the Supreme Court, and who is involved?
SHAW: Cases from four states -- Kentucky, Michigan, Ohio and Tennessee -- have been consolidated into one marathon argument session on two distinct questions: first, whether the Constitution allows states to deny gay couples the right to marry; and second, whether the Constitution requires states to recognize valid same-sex marriages performed in other states.
The plaintiffs are committed same-sex couples who either wish to marry in their states and have been prevented from doing so or who have gotten married in other states and wish to have their marriages recognized in the states they live in. A number are raising children; some are widowers; all tell very compelling stories about the harm they've suffered as a result of the law's refusal to recognize their relationships.
5) Do we know what the court will likely decide? There are nine justices. Do we have any indication as to how each might vote?
SHAW: If the court rules that the marriage bans in the 14 remaining states are unconstitutional, marriage equality will be the law of the land.
If the court rules that [same-sex] marriage is not required by the Constitution, the bans will survive, and the states in which [same-sex] marriage is legal as a result of a federal court decision will see their laws revert back to their previous status -- that is, not permitting same-sex marriage. The states that permit same-sex marriage as a result of legislation, referendum, or state court decision would not be impacted.
In that case [that the court decides the Constitution does not require same-sex marriage], the question of recognition of out-of-state marriages would become very significant. If the court ruled that states did not need to recognize out-of-state marriages, that would be a huge defeat for same-sex couples. If the court ruled that states were required to recognize valid out-of-state marriages, couples would be able to marry and move to any state and be treated as married for both state and federal law purposes. This would be a far cry from marriage equality across the country -- but not a total loss for same-sex couples.
It’s impossible to know how any justice will vote, but here, as in so many areas, it seems highly likely that everything will turn on the vote of Justice Anthony Kennedy. And the plaintiffs have reason to be hopeful here: Justice Kennedy wrote the opinion in Windsor, as well as two important, earlier gay rights decisions -- one in 1996 and one in 2003.
6) When will we learn what the court has decided, and what are the potential decisions? What will the various outcomes actually mean in real terms?
SHAW: I’d guess we’ll know in the very last week of the term, perhaps even the very last day -- at the end of June. This is a hugely important decision, and it’ll come down to the wire.
Editor’s note: This article has been updated to clarify the impacts for states that permit same-sex marriage.