Analysis: Same-sex marriage gains momentum

The pace of change may be faster than the Supreme Court’s preferences, says a law professor.

NEW YORK TIMES NEWS SERVICEFebruary 15, 2014 

WASHINGTON — A sweeping decision Thursday night struck down Virginia’s ban on same-sex marriage and continued a remarkable winning streak for gay rights advocates, putting new pressure on the U.S. Supreme Court to decide the momentous question it ducked last summer: whether there is a constitutional right to same-sex marriage.

Since June, when the Supreme Court ruled that same-sex couples are entitled to equal treatment in at least some settings, federal judges in Oklahoma, Utah and Virginia have struck down laws barring same-sex marriages. In state legislatures and state courts, too, supporters of same-sex marriage have been winning.

THE WINDSOR DECISION

Rapid changes in public opinion are also playing a part, said Andrew Koppelman, a law professor at Northwestern. “It is becoming increasingly clear to judges that if they rule against same-sex marriage their grandchildren will regard them as bigots,” he said.

In striking down Virginia’s ban on same-sex marriage, Judge Arenda L. Wright Allen of the U.S. District Court in Norfolk relied heavily on the Supreme Court’s decision in June in United States v. Windsor, which ruled that the federal government must provide benefits to same-sex couples married in states that allow such unions.

The Windsor decision also figured prominently in recent rulings from federal judges striking down bans on same-sex marriage in Oklahoma and Utah.

The three trial-court decisions vindicated a prediction from Justice Antonin Scalia, who dissented in Windsor. “By formally declaring anyone opposed to same-sex marriage an enemy of human decency,” he wrote, “the majority arms well every challenger to a state law restricting marriage to its traditional definition.”

He has so far turned out to be right, presumably to his dismay.

KENNEDY FIGURES PROMINENTLY

In keeping with the pace of change, Wright Allen’s decision was marked by haste. It was issued late in the evening, which was curious in light of the fact that it was stayed pending appeal. And its first paragraph, since corrected, initially attributed the phrase “all men are created equal” to the Constitution, though it is in the Declaration of Independence.

The decision chose just one of the plausible readings of Windsor, which contained doctrinal crosscurrents. Indeed, Wright Allen quoted a long passage from Justice Anthony Kennedy’s majority opinion extolling the central role of states in defining marriage. That would seem to support allowing Virginia to decide whom it will let marry.

“Notwithstanding the wisdom usually residing within proper deference to state authorities regarding domestic relations,” Wright Allen wrote, prompt action from the courts was required. “When core civil rights are at stake,” she said, “the judiciary must act.”

She drew on other parts of Kennedy’s opinion, and she had plenty to work with. Treating same-sex marriages differently from others, he wrote, “demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship the state has sought to dignify.”

“And,” he added, “it humiliates tens of thousands of children now being raised by same-sex couples.”

ECHOES

Wright Allen began her decision with a quotation from Mildred Loving, who successfully challenged Virginia’s ban on interracial marriage in the Supreme Court in Loving v. Virginia.

The Loving decision, which struck down such bans nationwide, is instructive in many ways, including in how to gauge the pace of change.

The Supreme Court issued the decision in 1967, which was quite late in the civil rights era. At the time, only 16 states still prohibited interracial unions.

Almost two decades had passed since the California Supreme Court struck down the state’s ban on interracial marriage in 1948.

In the meantime, the U.S. Supreme Court took sometimes unseemly pains, in an era when its jurisdiction was often nominally mandatory, to avoid ruling on the question.

On the other hand, public opinion in 1967 was strongly against interracial marriage, while most polls show that a rapidly growing majority of Americans support same-sex marriage.

That transformation in public sentiment will not be ignored by the judiciary, Koppelman said.

He added that the Supreme Court is likely to step in as soon as next year should any of the recent decisions be affirmed by a federal appeals court.

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