Marriage Advocates Work Toward Nationwide Ruling
Marriage equality advocates can see an end goal - having a nationwide ruling upholding the right of same-sex couples to wed - on the horizon. But it will take several years, and more victories at the state level, to arrive at that point.
So was the message during a plenary session last week at the National Lesbian and Gay Journalists Association’s annual convention, held this year in Boston. The panel focused on the aftermaths of the U.S. Supreme Court’s decision in June overturning Section 3 of the Defense of Marriage Act, which had prevented the federal government from recognizing state sanctioned same-sex marriages.
Noting there are already seven marriage equality cases that have been filed in federal courts since the highest court’s decision in U.S. v. Windsor, with more likely, Gay and Lesbian Advocates and Defenders legal director Gary Buseck predicted there would be dueling rulings at the circuit court level that will force the U.S. Supreme Court to reconcile the conflicting decisions.
"What we are talking about is where is this all moving? It is definitely going back to the U.S. Supreme Court," said Buseck.
The Windsor decision left standing the part of DOMA that says states are not required to recognize same-sex marriages performed in other states. And in the case dealing with the constitutionality of California’s Proposition 8, the voter-approved ban against gay nuptials, the U.S. Supreme Court opted not to issue a sweeping ruling overturning state laws outlawing same-sex marriage.
Rather, basing its decision on a question of standing, the justices punted the Hollingsworth v. Perry case back to the federal appellate court for the 9th Circuit. The circuit court then lifted its injunction against a federal district court ruling that found Prop 8 to be unconstitutional, paving the way for same-sex marriages to resume in the Golden State June 28.
Since the Perry case only applied to California’s anti-gay law, left standing were the so-called mini DOMAs enacted by other states that outlaw same-sex weddings. There are now federal lawsuits pending in Kentucky, North Carolina, Virginia, Pennsylvania, Nevada, and Arkansas seeking the right to marry.
"We are now in this world post-Section 3 where there is this patchwork of married and unmarried couples," said Buseck, noting that a couple’s marital status is dependent on the state they happen to reside in or are visiting.
The conundrum same-sex couples are facing prompted BuzzFeed reporter Chris Geidner, who moderated the panel, to ask when the U.S. Supreme Court will issue a decision on same-sex marriage as sweeping as its ruling in Loving v. Virginia. That landmark 1967 decision created a national right to interracial marriage.
"It is sort of chicken and egg like with the Supreme Court. Some justices want to put the genie back in the bottle and let the states figure it out," responded Amy Howe, the editor of SCOTUSblog, which reports on the court. "The question is if you can put the genie back in the bottle. These are real people with real lives who don’t want to put their legal issues on hold."
Part of the reticence for the court to declare marriage is a constitutional right, suggested Howe, is due to what happened after the court ruled that a woman has a right to an abortion in its 1973 decision in Roe v. Wade. It did not stop the debate over the issue or legislative actions to curtail access to abortions, which rages on to this day.
For some justices, particularly liberal justice Ruth Bader Ginsburg, the court’s Roe ruling had the effect of stopping the momentum for abortion rights, noted Howe. She added that moderate Justice Anthony Kennedy, seen as a key vote in gay rights cases, "wants a Loving-like decision" regarding marriage equality "but doesn’t want it to happen for a while."
At the time of Loving, 34 states had already allowed interracial marriages but just 30 percent of Americans supported such unions. Today, just 13 states plus the District of Columbia have legalized same-sex marriage, though polling shows that majorities of Americans now back marriage equality.
"Unless some miracle happens," said Marc Solomon, Freedom to Marry’s national campaign director, "we won’t have 34 states by 2016."
That year is when the U.S. Supreme Court could return to the issue of same-sex marriage.