It’s a little stunning to think how fast same-sex marriage has entered the mainstream. Less than 10 years ago, the thought of legal, same-sex marriage was a pipe dream even in the bluest of blue states.
Even six years ago, when he first ran for president, Barack Obama expressed deep ambivalence about the prospect of extending the definition of marriage to same-sex couples. And at the same time, numerous states were passing statutes, perhaps the most notable of which was California’s Proposition 8, that attempted to limit the definition to unions between a man and a woman.
Attempts to squelch same-sex marriage backfire
But efforts like Proposition 8 backfired spectacularly. First, they provided a springboard for gay rights activists to challenge the restrictions in court. While this was risky, it offered the potential of a swifter path to same-sex marriage recognition than would have been possible via the state legislature. And secondly, in more progressive states like Washington and Maine, the effort galvanized citizens to preemptively enact laws officially recognizing same-sex marriage.
The results have been more impressive than gay rights activists could have dreamed. Proposition 8, which eliminated the prospect of marriage for all same-sex couples in California, was enacted in 2008. Now, in 2014, referenda and court decisions across the country have rendered same-sex marriage legal in California and 31 other states.
United States v. Windsor sends powerful message
Important among those decisions is United States v. Windsor, a 2013 Supreme Court decision that gutted DOMA, the federal Defense of Marriage Act. While United States v. Windsor didn’t directly address the question of whether same-sex marriage is constitutionally required — it dealt with whether DOMA required the IRS to deny an estate tax exemption to a legally married, octogenarian lesbian — it sent a powerful message to the lower courts.
There are a lot of good arguments for why same-sex marriage should be sanctioned by the government, and there’s not much more than appeals to religion and traditional values on the opposing side. Those factors don’t go very far where the law is concerned. At the end of the day, if the government is going to be in the business of granting marriage licenses and associated benefits, it’s hard to construct a good legal argument that explains why the gender of those forming the union should matter.
Public opinion and lower court decisions move toward equality
So, here’s the interesting, recent twist. Appeals were taken to the avalanche of cases invalidating same-sex marriage bans following United States v. Windsor, and the Supreme Court rejected every one of them. This isn’t surprising; the Supreme Court takes only a small fraction — less than 2 percent — of the cases appealed to it.
While there was a greater chance the Supreme Court might have waded in here given the fact that a big part of its role is to take on large, thorny constitutional issues, the court is also a deliberative institution. It relies on precedent and eschews running ahead of public opinion. On this issue, opinion, both among the public and the lower courts, seemed to running along quite fine. So there was no need for the Supreme Court to get involved.
Federal court ‘circuit split’ necessitates Supreme Court answer
But last week, the U.S. Court of Appeals for the Sixth Circuit put a wrench in the works. The court, which in the judicial hierarchy sits only one level below the Supreme Court and covers the states of Kentucky, Michigan, Ohio and Tennessee, overturned decisions of its lower courts and upheld same-sex marriage bans in all four states. Now, overnight, there is a “circuit split,” a difference of opinion among the courts that sit immediately below the Supreme Court, resulting in citizens of adjacent states, like Ohio and Pennsylvania for example, having radically different rights.
When a same-sex couple in Indiana can get legally married but cannot move 10 minutes across the Ohio River to Louisville, Kentucky, without having their marriage deemed null and void, there’s a problem. And despite having passed on all of the other appeals just a month ago, the Supreme Court will now likely have to address the question of the constitutionality of same-sex marriage head-on.
Despite the recent momentum, this will not necessarily be a slam dunk for proponents of same-sex marriage. United States v. Windsor was decided on a 5-4 margin, and Supreme Court justices often see the wisdom of deferring to the decisions of state legislatures on questions such as this. But assuming the 6th Circuit doesn’t reverse its decision (something that remains a possibility), expect to see, within the next year, the Supreme Court answer the question of whether same-sex marriage is constitutionally required in every state.