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Tuesday, November 20, 2012

Same-sex marriage in the US is inevitable

Same-sex marriages will begin in Washington State on December 9, 2012.

So now there are nine states--Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, and Vermont--plus the District of Columbia, the Coquille Indian Tribe, and the Suquamish tribe, where same-sex marriage is legal. In California, of course, some couples who married are still married but there won't be any more, thanks to Proposition 8, until the Supreme Court of the United States makes some decisions.

And SCOTUS will be making some important choices on the matter very, very soon. Today At the end of the month (was November 20, but just postponed to November 30), the justices meet in private session to decide whether/when to hear any of the six ten queer rights cases that have been brought before them: four eight about the Defense of Marriage Act (DOMA) and its constitutionality, one about lesbian and gay rights (specifically health care) in Arizona, and one about Proposition 8*.

If the court doesn't take up one of these cases I will eat my ukulele chord book.

I am excited about this. (Not about the chord book--though perhaps consuming it whole would give me superpowers, the instant ability to play any chord, for which my neighbours would no doubt be most grateful...) In all likelihood, the case SCOTUS will take up will either be the Prop 8 case, or that of Edie Windsor, the 83-yr old lesbian widow whose wife died in 2009. If it were my choice, it would be  the latter. And, indeed, the Department of Justice has asked the supreme court to prioritise the Edie Winsor case.

Here's the interesting thing: in this last election, four out of the four states in which the electorate expressed an opinion on lesbian and gay rights at the state level voted in favour. SCOTUS will be influenced by this: their job, when it comes right down to it, is to obey the will of the people.

It's my belief and hope that, following recent precedent set by various circuit courts of appeal, SCOTUS will apply 'heightened scrutiny' to lesbians and gay men as a class. And that they will, as in the case of Loving v. Virginia, the case that struck down anti-miscegenation laws, find simply that states' rights are secondary to the rights set out in the Fourteenth Amendment, those of equal protection and due process:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Marriage, the Supreme Court has been saying since the 1920s--in a variety of ways--should not be interfered with by any kind of government, local or federal; it is the right of every citizen to marry whom they wish. This applies to race, to ethnicity, to age (within certain agreed-upon bounds) and soon--if I'm right--to sex.

It's my belief that SCOTUS will rule in favour of marriage equality. I think they might rule by a majority as high as 6-3. (Many of the Appeals Court rulings have opinions worded very carefully--and, in my opinion, aimed squarely at Justice Kennedy, the swing voter. And then there's Chief Justice Roberts' recent opinion on Patient Protection and Affordable Care Act (ACA), that is, the health-care law.) I think this will happen very, very soon--perhaps early next year.

However, you should bear in mind that I'm most definitely not an expert and, compared to most people, I'm wildly optimistic. I had dinner the other day with a board member of a prominent LGBT legal rights organisation. She was of the opinion same-sex marriage would be legal on the federal level "in the next ten years." I disagreed. I said: "2014." So, hey, let me repeat: I'm not an expert. But I just can't imagine, I really can't, how this isn't going to happen very, very soon.

Legally, socially, culturally, same-sex marriage is inevitable.

* Read this for an overview of the court situation regarding marriage equality.

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