Voters here banned same-sex marriage in 2006. This year, federal courts overturned the ban.
Wisconsin is among a number of states that have asked the nation’s highest court to rule on whether gay and lesbian couples can marry.
Marquette Law professor J. Gordon Hylton believes there’s so much public pressure surrounding the bans that the U.S. Supreme Court will take up the matter. He says justices could choose one or more of the cases before them.
“They have considerable discretion here, they could just grant certiorari to a whole group of cases from different states and try to resolve them all at once,” Hylton says.
Hylton says it has happened before, such as when the court made its landmark decision in 1954, that racially-segregated schools were unconstitutional.
“Brown v. Board of Education, for example, was actually five cases from four states. The court agreed to hear all of them, and then consolidated them and treated them as though they were a single case,” Hylton says.
Even if the court does not take Wisconsin’s case, but takes others, the results would affect all states, according to UW-Madison political science professor Howard Schweber. He says if the high court rules that bans on same-sex marriage are unconstitutional, then the legal fight ends. However, he says if the justices let bans survive, “the fight is not by any means over.” Schweber says advocates for same-sex marriage could try other tacks, such as pushing for state legislation, allowing same-sex couples to marry.
There’s yet another possible outcome, according to UW-Madison political scientist Ryan Owens. He says the high court could sit back and not take up the issue.
“The court may just want to say: ‘Look, typically we’re really interested in discrete and insular minorities who can’t be protected by the political process. That just doesn’t seem to be occurring here anymore,’” Owens says.
Owens says the court may feel that the gay and lesbian lobby is succeeding in changing laws.
“And they’re winning many of these cases, so they may not need the court’s special protection in these cases. That’s an argument that some have put forward, for why the court may not want to get involved here. It’s just not necessary,” Owens says.
If the Supreme Court agrees to take up same-sex marriage, it will be put on the docket for the term that begins in January. In the meantime in Wisconsin, a federal appeals court struck down the state’s ban, but is prohibiting gay and lesbian marriages, while the high court weighs its options.
