The Supreme Court of the United States examines, this Tuesday, April 28, the legality of same-sex marriage across the country. To date, 13 out of 50 states prohibit or do not recognize it. According to several experts, the highest American court may well authorize it. Perhaps the end of a long journey for the homosexual couples at the origin of the trial. Answer at the end of June.
It could well be a historic decision for the United States and the end of a long struggle for the American gay community. The Supreme Court examined, Tuesday, April 28, the constitutionality of same-sex marriage to say whether same-sex couples can marry anywhere in the country. For two and a half hours, nine judges listened to the arguments of the two opposing parties.
On the one hand, several homosexual couples living in Tennessee (south), Kentucky (central-east), Michigan and Ohio, four states that prohibit and do not recognize gay marriage. Supported by the Obama administration, the plaintiffs seized the Supreme Court in January 2015 because they want to be able to marry legally or to have their marriage recognized in the state where they live. "It is a trial which has gone through all the stages of a local case up to the Supreme Court and the Court has accepted", notes Nicole Bacharan, political scientist specializing in the United States.
On the other hand, the incriminated states are supported by numerous religious and conservative organizations which define marriage as the union between a man and a woman.
Tuesday, before the Supreme Court, activists waving multicolored flags, drag queens claiming "marriage for all", pastors or ultra-Orthodox Jews condemning him met. "I stand up for our rights. We deserve them, just like any other couple," said James Obergefell, one of the plaintiffs. A little further, opponents of gay marriage chanted: "Homosexuality is a threat to national security".
"It is an extremely important and very divisive subject politically, underlines Nicole Bacharan. The Supreme Court has a conservative majority but the president of the Court, John Roberts, is really a scrupulous lawyer. If they examine the question from the angle equality of citizens before the law, I do not see how they could refuse the constitutionality of gay marriage ".
Which states allow same-sex marriage?
To date, 37 states out of 50 (some of which are on appeal), including the federal capital Washington, allow it. This means that it is still banned and unrecognized in the 13 US states (see map below).
In June 2013, the Supreme Court had already taken a first step in the direction of the legalization of same-sex marriage by repealing part of a federal law which defined marriage as the union between a man and a woman. This repeal opened federal pension, inheritance, or tax relief rights to all legally married, heterosexual, or same-sex couples. Marriage, however, remained the responsibility of the States.
What does the Supreme Court need to consider?
To find out if it legalizes gay marriage throughout the United States, the high court must first consider whether the 14th Amendment to the Constitution will require a state to bind same-sex couples by marriage.
Second, the Court must determine whether the same Amendment will require a state to recognize a same-sex marriage legally celebrated in another state. In both cases, it must be based on the principle of equality of all before the law and on the fundamental right to marriage.
According to many experts, the recognition of marriage for all across the country now seems "inevitable". In the United States, people think that "it is already done", assures Nicole Bacharan. "For the public, for the courts, for the political parties, the case is heard. (...) It is just a question of knowing how long it will take for it to be legal in all the country". And to add, "that does not mean that there is not a very virulent opposition".
What changes are to be expected?
If the court decides that gay marriage is constitutionally legal, it can change people's lives "on a practical level: a case of surviving spouse's rights, social protection, couple's rights, over the family. It can change a lot of things." , says Nicole Bacharan. According to her, this case "shows that the country is changing. 20 years ago, the Court would never have agreed to debate this subject." In a recent poll by The Washington Post, 6 in 10 Americans are in favor of same-sex marriage.