More than 80 lawsuits
were filed in support of allowing gays and lesbians to wed in the last
year, a deluge of challenges triggered by a 2013 high court ruling in
favor of a lesbian who sought federal recognition of her relationship
with her wife. In siding with Edie Windsor to strike down part of the
Defense of Marriage Act, the court gave hope to LGBT advocates that it
would issue a definitive ruling on gay marriage bans in 31 states.
The justices, who will
meet in a closed-door conference on Monday, will consider whether to
hear any of three same-sex marriage lawsuits during the next term, which
officially starts Oct. 6. If they decide to review one or more of the
cases, a ruling could be reached by July on whether same-sex marriage
must be allowed nationwide. If they choose not to hear the cases, the
decision would allow gay nuptials in the ten states covered by the three
lawsuits. The court could also wait for a circuit court to disagree
with the others and support the state bans. The justice have until
January 2015 to make their decision.
Both opponents and supporters of gay marriage predict that the justices will hear at least one of the cases.
“Litigators on both
sides of this issue have known from the beginning and understood that
this is headed back to the Supreme Court,” said Austin Nimocks, senior
counsel at Alliance Defending Freedom, a legal ministry that is
defending the Oklahoma and Virginia same-sex marriage bans. “We're now
approaching the ultimate theater where everybody expects this to be
ultimately decided, at least from a judicial standpoint.”
“Given the huge flood of
cases coming up through the lower courts, they can’t responsibly
decline to hear this,” said Andrew Koppelman, a professor of law and
political science at Northwestern University and author of “Same Sex,
Different States: When Same-Sex Marriages Cross State Lines.”
“Because of the
unprecedented speed at which the courts are almost unanimously striking
down these laws, I think we are at a watershed moment in American
history and everybody anticipates that this will be resolved by the
Supreme Court,” noted Paul Castillo, counsel for Lambda Legal in the
Indiana and Virginia marriage cases.
The nation’s high court
already has heard a challenge to a state gay marriage ban– California’s
Proposition 8 – but said last year they couldn’t rule in that case
because supporters of the prohibition didn’t have the legal standing to
bring the lawsuit. The court’s decision allowed same-sex marriage to be
legal in that state.
This time, the cases from the lower courts are clear of the Prop. 8 technical problems, experts said.
“I think what the
Supreme Court is looking for is a case that presents the issue so that
they would be able to get straight to the heart of the matter,” Castillo
said.
National Conference of State Legislatures
Though many of the lawsuits
filed since the Windsor case have resulted in lower court victories for
supporters of gay nuptials, some judges have dissented. One, U.S.
District Judge Martin Feldman in Louisiana, recently became the first
federal judge to uphold a state marriage ban.
“I’ve seen it described
as an outlier decision. When I read it though, I found it has a greater
possibility of creating real questions,” said John Pagan, a professor of
constitutional law at the University of Richmond.
Those questions include
whether judges or voters should decide who can marry. Most of the
anti-gay marriage victories have been at the ballot box, while many of
those for supporters have come from judges.
“I'm surprised that they
(gay marriage opponents) haven't made this into more of a case about
federalism and democracy, and less a specious argument about whether
straight parents are better than gay parents. Because they're going to
lose,” Pagan added.
"If the state is to go the route of same-sex marriage, it should be a decision that’s made by the people."
The
same-sex marriage battle began more than 20 years ago when Hawaii
almost became the first state to approve of gays and lesbians marrying.
Opponents moved quickly: In 1996 Congress passed the Defense of Marriage
Act, which didn't allow federal recognition of same-sex marriage, and
the first state marriage bans were imposed. Back then, public approval
for gay nuptials was at 27 percent, according to the Gallup poll, but today it’s at 54 percent.
Despite nationwide
momentum in favor of gay marriage, opponents believe they’ll prevail in
this next chapter. They look to the Windsor decision, saying it
preserved part of the federal law that lets states regulate marriage.
(Some legal scholars have noted that states’ rights weren’t then the
question posed to the judges).
“We don't agree that
there's a foregone conclusion here in favor of same-sex marriage being
imposed by the judiciary on everybody against their will,” said Nimocks,
of the Alliance Defending Freedom. “There never has been a
constitutional right to same-sex marriage. If the state is to go the
route of same-sex marriage, it should be a decision that’s made by the
people.”
Brian Brown, president
of the National Organization for Marriage, which has funded many of the
ballots opposing gay nuptials, said that even if the court sided with
his opponents, his group would continue to fight. He likened the battle
to the resurgence in recent years of anti-abortion activists, who have
increasingly won restrictions on the procedure after losing before the
Supreme Court in the Roe v. Wade case in 1974.
“We don’t go away. We
will fight day in and day out,” Brown said. “There’s so much to do.
We’ve only begun to be heard in the public square.”
"The movement for same-sex marriage may be the most rapidly successful social movement in American history."
Yet the Supreme Court
justices and the lower federal court judges siding with gay marriage
haven’t faced the backlash that their predecessors experienced over
other civil rights issues, like the landmark school desegregation case,
Brown v. Board of Education.
“A lot of federal judges
(hearing Brown) followed what they thought the Constitution required,
and their lives were made miserable. They came under enormous personal
pressure and there was a lot of protests and resistance to what the
courts were doing. You haven't seen anything like that in the same-sex
marriage context,” said Koppelman, of Northwestern.
“Public opinion has
shifted radically on this issue. The movement for same-sex marriage may
be the most rapidly successful social movement in American history,” he
added.
A Supreme Court decision
can’t come soon enough for Charlene Smith-Smathers, 63, and her wife,
Dee, 73. The couple, living in Terry, Mississippi, wed in Massachusetts
last year but don’t enjoy the same rights as other couples since their
state doesn’t recognize same-sex marriage. They can file joint federal
income taxes but still file separate ones for the state, and Dee, who
has chronic medical problems, can’t be on Charlene’s health insurance
plan since they’re not considered married.
Charlene, a state
accountant, said the couple – together nearly 30 years - was “saving our
pennies” to go to Washington this summer if the court takes up one of
the cases.
“It’s just a tangled web we weave and it’s a mess,” she said. “This is stuff that really has to get settled.”
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