It has been a big week for the marriage equality movement with same-sex marriage bans being overturned in Oregon and Pennsylvania, with the latter purple state being particularly meaningful in that the Republican Governor is not going to appeal due to the futility of it. This follows a big year which has now seen the record go 13-0 federally (and a few state rulings) in favour of marriage equality since the overturn of DOMA by the Supreme Court, even if most of them have been stayed for the appeal process. Many of these are rulings in deeply red states like Arkansas and Kentucky that are hard to imagine being over turned quickly via legislative efforts. With a lawsuit launched in Montana, there are now only two states in the country without an active lawsuit on the issue working its way through the courts.
These are tremendous wins.
The end game depends on what the Supreme Court does. Most likely, several of these will be bundled by the Supreme Court and we will finally get a ruling by the Supreme Court on the merits - unlike the ruling in the California case where the overturn of the ban was upheld over a technical issue regarding standing. That court will likely have the same composition as it does currently: four stalwart liberals, four stalwart conservatives, and Justice Kennedy who is a conservative but largely been on our side on gay rights - he was instrumental in the overturn of DOMA, for instance.
The prediction that we will have nationwide gay weddings ultimately comes down to how a single man - one whose rulings are often based on technical legal rulings hard to predict by laypeople like myself - chooses to act on this. There is definitely uncertainty here.
The legal system is built upon precedent, trying to interpret new issues in the context of old ones. It isn't a coincidence that you have these 13 wins now: they come because of the DOMA case. That case opened the floodgate that allowed for federal judge after federal judge to overturn these various legislative, constitutional and ballot based bans. The same pressure now applies to the Supreme Court, and the legal canon has changed since DOMA first came about. Back then, should the Supreme Court have taken the California same-sex marriage case and overturned it nationwide they would be doing so off of a much smaller precedent of lower courts finding bans unconstitutional. Now the weight of legal opinion has shifted considerably in favour of the same-sex marriage side. I believe that Kennedy will go along with that.
If I am wrong, the battle will take longer. Kennedy could decide it is a states rights issue, and individual states in the deep south may be holdouts for a long time. That would be tragic if it was the case. Even then, I think the ballot and legislative changes have a short time frame for a large number of states as popular opinion is evolving fast.
If I am right, there is a natural question: what's next? The gay rights movement in the US has been built up and is very powerful. That movement should not be left to vanish the moment marriage equality arrives. There is still a lot of work to be done, and I would probably start at the school system where everything from suicide rates to drop out rates among stigmatized LGBT youth are still too far. The movement should be re-purposed from being marriage equality- centric to these other issues that affect LGBT people everywhere. Probably we should already be focusing more on these and are too myopically focused on marriage equality, important though that certainly is. Nonetheless, a huge victory coming should provide momentum to build, not leave us basking unproductively in the glow of success.
Thoughts on this post? Comment below!
Share this post: