The Constitution in 2014: the state of same-sex marriage

In this fourth article of a five-part series, Lyle Denniston looks ahead to the constitutional issues that will unfold in the campaign for same-sex marriage.   The final article in the series will deal with election law. Earlier articles covered the war on terrorism, abortion, and health care.

Photo by Flickr user Fibonacci Blue

Photo by Flickr user Fibonacci Blue

The campaign to win marriage rights for same-sex couples that began somewhat hesitantly in Hawaii more than twenty years ago burst forth in 2013 into something close to a constitutional revolution.  The year 2014 very likely will take the issue back to the Supreme Court even as efforts continue to advance the campaign at the state level.

As 2013 opened, a decade after the first definite victory in Massachusetts, a total of nine states and Washington, D.C., had opened marriage to same-sex couples either by court decision, legislation, or ballot measure.  For the first time, the ballot box became a place for victory, not defeat, for same-sex marriage as the November 12 elections showed the issue could win in a popular test, and did so in three states – Maine, Maryland and Washington.

As 2013 closed, the total had reached 17 states, and there was at least a first-round court victory in an eighteenth — Utah.  The pace has been more rapid than for any prior campaign to promote the civil rights of a specific group, such as racial minorities and women.

The highest visibility gains came from the Supreme Court. The court cleared the way for such marriages in California, the largest state, and struck down the federal Defense of Marriage Act (DOMA) that had denied any federal benefits to already-married same-sex couples.

That Supreme Court ruling on DOMA helped influence lower courts then to rule for same-sex marriage, in New Jersey and New Mexico, and was the direct source for a federal judge’s ruling in Utah against that state’s ban, and for a federal judge’s ruling in Ohio requiring that state to respect same-sex marriages that Ohioans had entered in other states.

The pace of lower court rulings in recent weeks has been so swift that the Supreme Court is likely to be drawn into another look at the issue at an earlier point than many had expected.

With a new round of lawsuits unfolding further in 2014, the chances appear to be quite strong that conflicting rulings will emerge on the constitutionality of the existing bans on same-sex marriage that for now remain on the books in 33 states.

If that does in fact happen, that would set the stage for one or more appeals to the Supreme Court, and the Justices would be more likely to get back into the constitutional fray if lower courts cannot agree on the constitutional status of same-sex marriage.

Even though the court’s actions in 2013 provided a major breakthrough for marriage equality, there were some signs that the court was not yet ready to have to face the question of full equality, until it had little choice – as would be the case if there were a well-defined split among lower courts.

When the court in early December 2012 agreed to review the DOMA law’s constitutionality and a lower court ruling striking down California’s “Proposition 8” ban on same-serx marriage, it was the first time in history that the court had prepared to issue a direct ruling on the issue.  Previously, in 1972, it had passed up a chance to issue a ruling, simply leaving intact a state court ruling against such marriages in Minnesota.

Even so, the court showed some reluctance in 2013 to move boldly in either the DOMA or “Proposition 8” cases.  At the outset, it raised potential procedural issues that might have put off a definitive ruling.  In fact, in the end, the court allowed same-sex marriages to begin in California without approving a right to do so, because it concluded that the “Proposition 8” supporters did not have the right to appeal.

On the federal law, the victory for same-sex marriage was definite, although it was limited.  The only couples who could gain federal benefits from that decision were those who had already been legally married in states that allowed them to wed.  And the court’s main opinion stressed that it was not ruling on the constitutionality of any state’s ban.

The constitutional fate of the state bans has now become the focus of the ongoing campaign to achieve marriage equality, with supporters of that goal vowing to press the question in all 50 states.

It appears that there are few remaining states where the legislature is inclined to remove the bans.  About half of the victories up to now have come from state legislatures.  So the strategy is likely to have better chances through constitutional lawsuits in state and federal courts..

In each case, the issues that will arise are already well defined: the supporters of same-sex marriage will pursue the argument that their right to marry is a matter of fundamental constitutional fairness, likening it to the successful challenge to state laws against mixed race marriages, and the opponents will pursue the dual claim that defining marriage is the responsibility of the states and that, in any event, there are valid cultural reasons for maintaining marriage in its traditional form.

Each will seek to interpret what the Supreme Court has done so far as support for their side in the argument, and in doing so, they will be able to cite statements in the opinions the court issued last June to that effect.

Chief Justice John G. Roberts, Jr., read the main opinion on DOMA, written by Justice Anthony M. Kennedy, as emphasizing states’ primary authority over marriage, while Justice Antonin Scalia read that same opinion as pointing toward the end of bans on same-sex marriage.  Those, however, were statements made in dissenting opinions, so the views of the current majority remain undeclared.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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