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.



  1. I agree it's inevitable. My timeline is not as optimistic as yours, but it's still guided by optimism. I think that by 2015, nearly every state Obama won in 2012 will have approved it, and that the Supreme Court will overturn Prop 8.

    That said, when a law to make it federal is introduced in the Congress, it will likely fail to win approval the first time. But in the last two years of Obama's second term, I expect he will make it a legacy priority and twist enough arms to get it passed in mid-2016.

    So I have 2016 in the pool. Not that I approve of gambling, of course.


    1. Honestly: I think June 2013 is when it all happens. I only said 2014 because adding an extra year--well, hey, what's the harm?

      I'd rather not have to wait four years. People are suffering now.

      But perhaps we could wager a modest sum: a drink? To be claimed on the day it is, finally, legal?

    2. I will take that bet. And I will hope to buy you a drink.

    3. Mike, if you're in Seattle or Sacramento this summer, I accept!

  2. I'll take 2015. And that feels wildly optimistic. :)

  3. First, I think you mischaracterized the Supreme Court's job. It isn't to obey the will of the people, it's to interpret the Constitution.

    Second, you're mixing up several issues into one larger issue. Each case presented to the court is on a slightly different aspect of the law or legal protections. None of the current cases are asking the Supreme Court to find that same sex couples have a constitutional right to marry. That will come eventually, but weren't not there yet.

    The court could decide that on its own, but it's traditional to decide cases as narrowly as possible. And since that is not the issue being presented, there's no reason for them to not wait for a case about precisely that issue in the future and public opinion can catch up some more in the meantime.

    Most of the cases right now are only concerning the constitutionality of DOMA. Declaring it unconstitutional only affects those couples already legally married in states which allow it. It would not overrule state laws on same-sex marriage. There's little doubt in anyone's mind that SCOTUS will take up one or more of those cases and it's difficult to imagine them allowing DOMA to stand.

    There's a decent chance they will also take up the Prop 8 case in addition to one or more of the DOMA cases, but that's an entirely different issue. If they declare Prop 8 unconstitutional, that only affects California. (If they don't take up Prop 8 then the district court ruling stands and people in California can start marrying again, but only California.)

    1. I'm being careless, and I'm eliding, yes. My notion: once DOMA goes down--and it will, soon--someone in a red state will sue to get married. That case will get punted rapidly up the legal food chain ( I sense a real mood of hurry-up and even now from many directions). SCOTUS will be faced squarely with the Fourteenth Amendment issue--if I'm understanding all this correctly. (I'm the first to admit I'm very far from being an expert on these matters.)

      And it seems to me that interpretation of the Constitution tends to occur in relation to the mores of society--chich currently is tilting heavily towards marriage equality...

  4. Yep, I'll agree with all that. Though, I don't see that being achieved by 2014. The ruling on the current cases won't be until 2013, and as far as I know there are not any cases working their way up right now that address the larger, constitutional right to marry.

    There is a case in Nevada right now that addresses an intermediary question. It's concerning the constitutionality of "separate but equal" because they have a domestic partnership law similar to the one we had in Washington. The plaintiffs are making the claim that providing all the rights but still denying marriage is unconstitutional. That one won't get to the Supremes for another year or two. A ruling on that one would affect any state that has a similar setup, but still would not affect states that have no same-sex provisions at all.

    I do expect we'll see some case popping up after the court rules on the current cases (if not before) that finally asks the big question. But you still have to allow it at least a couple years usually to make its way up through the courts.

    1. What you says sounds very sensible and rational and logical. And as I read, I'm nodding.

      Yet there's another part of me that sincerely believes it's all going to happen faster than that. Irrational? Absolutely. Which is why I've taken great pains to make it as clear as I can that I'm being wildly optimistic, and many experts don't agree with me.

      What can I say? I'm not really in a mood to be sensible...