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Expansion of Same-sex marriage in the U.S.

Part 1: Overview. Predictions by Ned
Lathery of Marriage Equality, USA.
Predictions by Justices Kennedy & Scalia.

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Overview:

SSM developments, both inside and outside the U.S. may well have had an impact on the hopes of the American LGBT community that SSM will be available across the entire U.S. soon. They probably also increased the majority of the American public that now expects SSM to become universally available in the U.S. 1

Most recent activity to legalize SSM have tackled one state at a time. However, this approach has its limitations. Of the 37 states that do not currently allow SSM, the vast majority have state constitutional amendments in place that prohibit SSM. These amendments would have to be repealed in public referendums or ruled unconstitutional by federal courts before the state Legislature could change their marriage acts and achieve marriage equality.

That would take a lot of time.

According to calculations by Nate Silver in his FiveEightySix blog in the New York Times, as of election day in 2012-NOV, there were:

  • 31 states in which a majority of adults would have opposed approving SSM in a ballot initiative.
  • 6 states where support for SSM was 40% or less.
  • 2 states (Alabama and Mississippi) where support for SSM was below 30%. 2

Although support for SSM is gradually increasing in every state, Silver predicts that by 2020, there will still be six states -- all from the deep South -- in which a ballot initiative on marriage equality would fail: South Carolina, Arkansas, Georgia, Louisiana, Alabama and Mississippi. 2 Silver predicts that in 2020, only 42.5% would favor SSM in Alabama, and 37.8% in Mississippi!

The Human Rights Campaign is one of the main national groups promoting LGBT equality. In mid-2013, they set an ambitious goal: to achieve marriage equality across the entire U.S. within five years -- i.e., by mid 2018! They hope to attain this by encouraging Legislatures to pass laws for marriage equality in some additional states. Then a lawsuit by one or more couples in a state that does not allow SSM would be appealed to the applicable U.S. Circuit Court of Appeals and eventually to the U.S. Supreme Court. That court might deliver a sufficiently broad ruling that would overturn all of the the remaining anti-equality state laws and constitutional amendments overnight, as it did in 1967 over interracial marriage. 7 That was the most recent time that marriage was redefined across the nation. At that time, 16 contiguous south-eastern states still had anti-miscegenation laws in place when the U.S. Supreme Court ruled in the appropriately named Loving v. Virginia case that interracial marriage was to be available throughout the U.S.

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2013-MAR: Prediction by Ned Flaherty of Marriage Equality, USA:

Ned Flaherty is the Project Manager of Marriage Equality, USA. He wrote an article in PolicyMic 3 in which he noted that the first group of 12 states to attain marriage equality took 22 years of advocacy -- from 1990 to 2012. In early 2013, he predicted that the next group of 12 states will take only two years: 2013 & 2014. He noted also that as of 2013-MAR, there were 42 active marriage equality lawsuits in state and federal courts across the U.S.

He not only predicted the 12 states that he believed would attain equality during 2013 & 2014, but also predicted the order:

  • #11: Illinois: A SSM bill has passed the House and votes in favor were accumulating in the House, but the Legislature started its summer recess before enough votes were found to pass the bill. It will be reconsidered in 2013-NOV. Meanwhile, a state court case is underway.

  • #12: Rhode Island: It attained marriage equality in 2013-MAY by legislative action.

  • #13: Delaware: It also attained marriage equality in 2013-MAY by legislative action.

  • #14: New Jersey: A bill has been approved by House and Senate, but was vetoed by Governor Chris Christie (R). The legislature is attempting to override the veto. A federal court challenge is underway. A referendum is possible, was urged by the Governor, and is favored by most voters.

  • #15: Minnesota: It also attained marriage equality in 2013-MAY by legislative action.

  • #16: Hawaii: A federal court case is underway. The Legislature will resume debate on SSM in early 2014. A 2014 referendum is possible.

  • #17: Michigan: The 2004 Constitutional ban would have to be repealed. There is some legislative activity. A federal court case is underway.

  • #18: Oregon: The 2004 Constitutional ban would have to be repealed. There is some legislative activity. A federal court case is likely.

  • #19: Colorado: The 2006 Constitutional ban would have to be repealed. Some legislative activity is underway. A federal court case is likely.

  • #20: New Mexico: There is no state law or clause in the Constitution that bans SSM. Some legislative activity underway. A referendum is possible.

  • #21: Nevada: The 2002 Constitutional ban would have to be repealed. Some legislative activity is underway. A federal court case is underway.

  • #22: California: It attained marriage equality in 2013-JUN by a U.S. Supreme Court ruling. 3

Some of his predictions appear to be impossible to attain by 2014-DEC because existing state Constitutional bans first have to repealed before SSM can be legalized. Typically a repeal takes a few years.

However, within a few months of the publishing of his article, SSM was already legalized in four states (DE, MN, RI, CA) and came close to beeing approved in a fifth state (Illinois).

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Predictions of the future of SSM. as extracted from writings of two U.S. Supreme Court justices:

The three most important rulings to date by the U.S. Supreme Court on same-gender sexual activity and marriage are arguably:

  • Lawrence v. Texas (2003-JUN-26): This was a challenge to a Texas law that had criminalized same-gender private sexual activity by adults. By a 6 to 3 vote, the majority found that the law was unconstitutional. The ruling was sufficiently broad to also declare unconstitutional similar laws in Alabama, Florida, Idaho, Kansas, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Utah and Virginia. More details.

  • U.S. v. Wilson (released, by coincidence, precisely one decade later than Lawrence, on 2003-JUN-26): This ruling declared unconstitutional Section 3 of the federal Defense of Marriage Act (DOMA). This was the section which required the federal government to withhold access to 1,138 federal marriage benefits and protections from legally married loving, committed couples who are of the same sex.

  • Hollingsworth v. Perry (formerly Perry v. Schwarzenegger) (Also on 2013-JUN-26): This is the lawsuit challenging the constitutionality of Proposition 8 -- the citizen initiative that banned same-sex marriage in California in 2008-NOV. The court ruling resulted in the marriage becoming available once more to same-sex couples within the largest state in the union. However, the effects of this ruling are largely symbolic. With the Field Poll showing that California adults now favored SSM by a ratio of 61% to 32%, even if this ruling had not restarted SSMs, a future citizen initiative to repeal Proposition 8 -- perhaps in 2014 -- would certainly have passed overwhelmingly.

Back in 2003, writing for the majority in Lawrence v. Texas, Justice Anthony Kennedy stated that:

"The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. Their right to liberty under (the Constitution) gives them the full right to engage in their conduct without intervention of the government....[They] are entitled to respect for their private lives...The state cannot demean their existence or control their destiny by making their private sexual conduct a crime. ... In our tradition the State is not omnipresent in our home...Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct." 5

Justice Antonin Scalia wrote a blistering minority opinion in Lawrence. He took the unusual step of reading his dissent from the bench. He said in part:

"The court has largely signed on to the so-called homosexual agenda...The court has taken sides in the culture war....This reasoning leaves on shaky, pretty shaky grounds, state laws limiting marriage to opposite-sex couples. ... State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity ... every single one of these laws is called into question by today's decision,"  5,6

Justice Scalia also wrote that the majority Justices pretended that they have left enough freedom:

"... so that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada ... Do not believe it ... [The majority opinion] dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned." 7

Justice Scalia's prediction that courts would make future rulings to legalize same-sex marriage came true during the next year when the Supreme Court of Massachusetts required the state legislature to change its marriage laws and become the first state to legalize SSM in the U.S.

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This topic continues in the next essay

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "Poll: Gay Marriage Viewed As 'Inevitable' By Most Americans," Huffington Post, 2013-JUN-06, at: http://www.huffingtonpost.com/
  2. Nate Silver, "How Opinion on Same-Sex Marriage Is Changing, and What It Means," FiveThirtyEight blog, New York Times, 2013-MAR-26, at: http://fivethirtyeight.blogs.nytimes.com/
  3. Ned Flaherty, "12 States That Will Probably Legalize Gay Marriage in 2013-2014," PolicyMic, 2013-MAR, at: http://www.policymic.com/
  4. Robert Barnes, "Kennedy’s opinion may predict the future for same-sex marriage," Washington Post, 2013-JUN-26, at: http://articles.washingtonpost.com/
  5. "High Court Rejects Sodomy Law," CBS News, 2003-JUN-26, at: http://www.cbsnews.com/
  6. "Supreme Court strikes down Texas sodomy law," CNN.com Law Center, 2003-JUN-26, at: http://www.cnn.com/2003/
  7. Tim Harper, "Sodomy laws struck down: Highest U.S. court says Texas statute unconstitutional. Dissenter warns of legalized marriage for homosexuals," Toronto Star, 2003-JUN-27, Page A3.

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Copyright © 2013 by Ontario Consultants on Religious Tolerance 
Originally written: 2013-JUL-15
Latest update: 2013-JUL-28
Author: B.A. Robinson

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