WASHINGTON — The Supreme Court on Tuesday will hear extended arguments, scheduled to run 2½ hours, in highly anticipated cases about the right of same-sex couples to marry.
The cases before the court come from Kentucky, Michigan, Ohio, and Tennessee, all of which had their marriage bans upheld by the federal appeals court in Cincinnati in November.
The Cincinnati appeals court is the only one that has ruled in favor of the states since the 2013 Supreme Court decision in United States v. Windsor, in which the justices struck down part of the federal law that denied a range of government benefits to legally married same-sex couples.
The Windsor decision did not address the validity of state marriage bans, but courts across the country, with few exceptions, said its logic compelled them to invalidate state laws that prohibited gay and lesbian couples from marrying.
The number of states allowing same-sex marriage has grown rapidly. As recently as October, just over one-third of the states permitted same-sex marriage. Now, same-sex couples can marry in 36 states, the District of Columbia, and parts of Missouri.
Two related questions before the Supreme Court this week would expand the marriage rights of same-sex couples.
The bigger question is whether same-sex couples have a constitutional right to marry or whether the states can continue to define marriage as the union of a man and a woman. The second question is whether states must recognize valid same-sex marriages from elsewhere, even if they will not allow some couples to marry.
The arguments of marriage-rights supporters boil down to a claim that states lack any valid reason to deny the right to marry, which the court has earlier described as fundamental to the pursuit of happiness.
The supporters say state laws that allow only some people to marry violate the Constitution’s guarantee of equal protection under the law and make second-class citizens of same-sex couples and their families. Same-sex couples say that preventing them from marrying is akin to a past ban on interracial marriage, which the Supreme Court struck down in 1967.
The states respond that they have always set the rules for marriage and that voters in many states have backed, sometimes overwhelmingly, changes to their constitutions to limit marriage to a man and a woman.
They say a lively national debate is underway and there is no reason for courts to impose a solution that should be left to the political process.
The states also argue that they have a good reason to keep defining marriage as they do. Because only heterosexual couples can produce children, it is in the states’ interest to make marriage laws that encourage those couples to enter a union that supports raising children.
The Obama administration is backing the right of same-sex couples to marry, although its argument differs in one respect.
The plaintiffs say that the state laws should fall, no matter what standard the court applies.
The administration calls for more rigorous scrutiny than courts ordinarily apply to most laws, saying it is appropriate when governments discriminate against a group of people. That already is the case for claims that laws discriminate on the basis of race, sex, and other factors. But the administration is silent about what the outcome should be if the court does not give gays the special protection it has afforded women and minorities.
The Justice Department’s decision to stop defending the federal antimarriage law in 2011 was an important moment for gay rights.
A Supreme Court ruling that same-sex couples have a right to marry would invalidate the remaining laws banning gay marriage in the country. If the court limits its ruling to requiring states to recognize same-sex unions, couples in states without same-sex marriage presumably could get married elsewhere and then demand recognition at home.
If the justices rule for the states on both questions, the bans in 14 states would survive. Beyond that, confusion probably would reign. Some states that had their marriage laws struck down by federal courts might seek to reinstate prohibitions on gay and lesbian unions. Questions also could be raised about the validity of some same-sex weddings. Many of these problems would be of the Supreme Court’s own making.
From October to January, the justices first rejected appeals from states seeking to preserve their marriage bans, then allowed court rulings to take effect even as other states appealed those decisions. The result is that the court essentially allowed the number of states with same-sex marriage to double.
Massachusetts became the first state to legalize same-sex marriages after a 2003 state Supreme Judicial Court ruling.
More than 500 marriage licenses were issued to same-sex couples in Alabama this year after a federal court struck down the state’s ban. But probate judges have not issued any more licenses to gay and lesbian couples since the Alabama Supreme Court ordered a halt to same-sex unions in early March.
Gay and lesbian couples may not marry in Alabama, Arkansas, Georgia, Kentucky, Louisiana, Michigan, Mississippi, most of Missouri, Nebraska, North Dakota, Ohio, South Dakota, Tennessee, and Texas.