Courts Have Next Moves on Marriage Equality

     The past year has been very, very good for marriage equality for gay and lesbian couples in the United States. In a 13-month period (November through November), the number of states recognizing marriage rights for same-sex couples more than doubled from six (plus the District of Columbia) to 16; the number of people living in marriage equality states more than tripled from about 35 million to 118 million.
      But hold the applause. Despite that progress for gay rights supporters, somewhat more than 60 percent of Americans still live in states where same-sex couples cannot marry. And the barriers to marriage equality in almost all of those 34 states are formidable. All but a few have Republican-controlled legislatures and Republican governors, and the Republican Party has yet to get the memo that most Americans now support marriage rights for gay and lesbian couples.
      In addition, most of those states have constitutional amendments defining marriage as “one man and one woman,” provisions that cannot be repealed by simple legislation. Voters approved most of those anti-gay measures in the decade from the mid-1990s through 2004 while gay marriage supporters were focusing mostly on court cases.
     Gay marriage was terra incognita for the voters at that time. As of November 2004, Adam and Steve could get married in only one state: Massachusetts. It was easy for anti-gay groups to depict this uncharted terrain as hostile to traditional marriage, unhealthy for children, and unsettling for public morality. Through 2004, all the amendments but one (Oregon’s) won approval with more than 60 percent of the votes cast.
     Since Massachusetts, gay marriage supporters have turned to and succeeded in the political sphere. Along with the District of Columbia, 12 states have decided to allow same-sex marriages by legislation, not by judicial fiat. That number includes Maine, Maryland, and Washington, where voters last year rejected referenda aimed at overturning the legislative enactments. And it includes five more states that enacted same-sex marriage legislation since November 2012: Minnesota, Rhode Island, Delaware, Hawaii, and Illinois.
     The political route, however, appears now to be, if not at a dead end, at the start of a steep incline. So attention turns to the courts, which yielded two of the state victories in the past year. Most significantly, the Supreme Court in late June greenlighted gay marriage in California by leaving on the books a lower federal court decision that struck down the state’s anti-gay marriage initiative Proposition 8 (Hollingsworth v. Perry).
     On the same day, the court struck down the federal Defense of Marriage Act (DOMA), which barred federal marriage-based benefits to same-sex couples even if legally married in their home states. The ruling in United States v. Windsor provided the basis for a New Jersey trial-level court three months later to strike down the state’s ban on same-sex marriage. The court reasoned that New Jersey’s law, by denying federal benefits to same-sex couples, violated the state constitution’s own equal protection requirements. Advised that the New Jersey Supreme Court would likely affirm the decision, Gov. Chris Christie decided the state would not appeal.
     Gay marriage supporters sense another possible victory in New Mexico, where the state supreme court heard arguments on the issue on Oct. 23. News accounts viewed the questions from the justices as favoring the gay marriage advocates. Meanwhile, marriage equality supporters in Oregon say they have enough signatures to qualify a proposal to repeal the state’s gay marriage ban for the November 2014 ballot.
      Meanwhile, federal court suits are pending in 17 states, including Oregon, aimed at judicially overturning gay marriage bans, according to a compilation by  the national advocacy group Freedom to Marry. One other federal court suit, in Tennessee, is limited to seeking to force the state to recognize same-sex marriages from other states. These suits are pending in federal courts in some of the reddest of the red states, such as Arkansas, Mississippi, Oklahoma, and South Carolina. A comparable suit is pending in state court in Colorado. Some suits are far along—notably, those in Nevada and Michigan; others have just been filed.
     In all of these cases, the Supreme Court’s decision in Windsor is potentially powerful support for gay marriage advocates. Admittedly, Justice Anthony M. Kennedy took care in his opinion for the 5-4 majority to acknowledge the states’ “unquestioned authority” over marriage law. In the critical passages, however, Kennedy said that the federal government’s refusal to recognize same-sex marriages places those couples “in an unstable position,” burdens their lives “in visible and public ways,” and “humiliates tens of thousands of children now being raised by same-sex couples.”
      Suppose, for a moment, that you are a federal judge, with those passages before you, trying to write a decision upholding a state’s ban on same-sex marriages. What arguments are still open to you? Harm to traditional marriage? Harm to children? Harm to society? In the first cases after Massachusetts, state high courts in New York and Washington accepted those arguments, in closely divided decisions. Now, almost a decade later, they fail, by experience as well as logic.
     Opponents of gay marriage are losing in the court of public opinion and being pushed back in political forums. With so many suits pending, federal courts may not all agree. But the arc of history is bending toward marriage equality. And the Supreme Court’s ultimate role in this litigation may only be to ratify a consensus that Americans have already accepted.