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

Part 1: Overview. Predictions by Ned
Flahtery of Marriage Equality, USA.

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wedding ringsOverview:

Recent state-by-state developments towards marriage equality, 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 already high percentage of the American public that now expects SSM to become universally available in the U.S. 1

Most past activity to legalize SSM have tackled one state Legislature at a time. However, this approach had its limitations. Of the 31 states that do not currently allow SSM (as of 2014-JUN), 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 These amendments would have to be repealed in public referendums or ruled unconstitutional by federal courts before the state Legislature could change their marriage acts and achieve marriage equality.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 in the deep South (Alabama and Mississippi) where support for SSM was below 30%. 2

Support for SSM is gradually increasing in every state. It is largely driven by an influx of young adults into the voting pool who heavily support marriage equality, and the outflux of seniors who have mainly opposed same-sex marriage. Silver predicted that by 2020, there will still be six states -- all from the deep South -- in which a ballot initiative on marriage equality would fail. They are: 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 marriage 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 with a two prong approach:

  • By encouraging Legislatures to pass laws and/or authorize plebiscites for marriage equality in states that currently ban SSM.

  • By filing one or more lawsuits in either state or federal court in each of the states that does not allow SSM. Each lawsuit would be filed by one or more couples as plaintiffs. The lower court rulings would be appealed -- perhaps as far as 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 in the famous and aptly named lawsuit: "Loving v. Virginia." 3 "Loving" produced the most recent redefinition of marriage across the entire nation. At that time, 16 contiguous south-eastern states still had anti-miscegenation laws in place when the U.S. Supreme Court ruled that interracial marriage was to be made available throughout the entire U.S.

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2013-MAR: Prediction by Ned Flaherty of Marriage Equality, USA (With results described as of mid-2014):

Ned Flaherty is the Project Manager of Marriage Equality, USA. He had an article published during 2013-MAR in PolicyMic 4 He noted that the first group of 12 states to attain marriage equality took 22 years of advocacy -- from 1990 to 2012. This was about one state every two years. In early 2013, he predicted that the next group of 12 states will take only two years: 2013 & 2014. This would average six states every year -- a 12 fold increase in the rate of change. He noted also that as of 2013-MAR, there were 42 active marriage equality lawsuits in state and federal courts across the U.S. By mid-2014, this number had grown to over 70.

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

  • #11: Illinois: A bill to legalize SSM had 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. Meanwhile, a lawsuit in state court was underway. star Result: The House passed the bill and it was signed into law on 2013-NOV-20.

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

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

  • #14: New Jersey: A bill was approved by House and Senate, but was vetoed by Governor Chris Christie (R). A federal court challenge was underway. A referendum was possible, was urged by the Governor, and was favored by most voters. star Result: the state Supreme Court legalized SSM in 2013-OCT.
  • #15: Minnesota: star Result: It also attained marriage equality in 2013-MAY by legislative action.

  • #16: Hawaii: A federal court case was active. The Legislature resumed debate on a SSM bill in early 2014. A referendum was being discussed for 2014-NOV. star Result: After a 23 year struggle by equality advocates, the Governor signed a SSM bill into law. Wedding licenses became available to same-sex couples starting on 2013-DEC-02.

  • #17: Michigan: A Constitutional ban was passed in 2004. There was some legislative activity. A federal court case had been filed. star Result: Partial victory. After a favorable decision by a federal District Court, same-sex marriage licenses were available, but only for a day. That decision is now stayed, pending a ruling by the U.S. 6th Court of Appeals.

  • #18: Oregon: A Constitutional ban was passed in 2004. There was some legislative activity. A federal court case was likely. star Result: A District Court lawsuit was filed. The court's ruling legalized same-sex marriage in the state on 2014-MAY-19. The ruling was not appealed.

  • #19: Colorado: A Constitutional ban was passed in 2008. Some legislative activity is underway. A federal court case was filed during 2014-FEB. A civil unions law passed. Although it treats same-sex couples' relationships as second class, and although it does not allow same-sex couples to call their relationship a marriage, it does give same-sex couples and their children most of the benefits and protections of marriage.

  • #20: New Mexico: There was no state law or clause in the Constitution that bans SSM. Some legislative and court activity was underway. A referendum was possible. star Result: The New Mexico Supreme Court legalized SSMs on 2013-DEC-19.

  • #21: Nevada: A Constitutional ban was passed in 2002. Some legislative activity was underway. A federal court case was filed. Current status: Plaintiffs lost at the District Court back in 2002-DEC. The lawsuit has been appealed to the 9th U.S. Circuit Court of Appeals.

  • #22: California: star It attained marriage equality in 2013-JUN as a result of a U.S. Supreme Court ruling in Hollingsworth v. Perry which legalized same-sex marriage again. 4

Some of Flaherty's predictions appear to be impossible to attain before the end of 2014 via legislative action because existing state Constitutional bans would first have to repealed before SSM can be legalized. Typically such a repeal would take multiple years. However, the path to legalizing SSM in a state by filing lawsuits in federal or state courts can be much quicker.

Results as of mid-2013:

Within a few months of the publishing of his article, SSM had already been legalized in new four states (DE, MN, RI, CA).

Results as of mid-2014:

Ned Flaherty had predicted the availability of same-sex marriages in an additional 12 states by the end of 2014. By the middle of 2014, his prediction had already come true in 9 states. Also by mid-2014 from among his list of states:

  • A lawsuit in Michigan to legalize SSM is before the 6th U.S. Circuit Court of Appeal.

  • A lawsuits in Nevada to legalize SSM is before the 9th U.S. Circuit Court of Appeal.

  • The Colorado legislature passed a civil union bill into law.

Elsewhere in the U.S.:

  • Lawsuits are active in federal and district courts of all of the 31 states that currently still bar same-sex marriages.

  • Some of these lawsuits are before three-judge panels of various U.S. Circuit Courts of Appeal, some of which may issue rulings in the summer or fall of 2014. Appeals would then be probable to the full Circuit Courts, and finally to the U.S. Supreme Court which might grant certiorari -- agree to hear the case(s) -- in 2014-DEC. The court would probably then hold hearings during 2015-MAR, and issue their ruling in late 2015-JUN. However, it is very improbable that Circuit Courts can react quickly enough to meet this schedule. The Supreme Court's decision could easily be delayed a year until mid-2016.

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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. 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.
  4. Ned Flaherty, "12 States That Will Probably Legalize Gay Marriage in 2013-2014," PolicyMic, 2013-MAR, at: http://www.policymic.com/

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Copyright © 2013 & 2014by Ontario Consultants on Religious Tolerance 
Originally written: 2013-JUL-15
Latest update: 2013-JUN-18
Author: B.A. Robinson

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