- The Washington Times - Wednesday, June 18, 2014

With stunning swiftness, the legal landscape for same-sex marriage has been reshaped in less than a year after the Supreme Court struck down part of the federal Defense of Marriage Act.

What some thought would be a state-by-state political trickle instead has been a legal tsunami.

“There is now marriage equality or marriage equality litigation in every state. Momentum is clearly on our side,” Kevin Cathcart, executive director of Lambda Legal, told a sold-out event for legal allies June 10.

Still, opponents of same-sex marriage are undeterred.

The National Organization for Marriage and other groups are rallying like-minded activists to attend a national March for Marriage on Thursday and sharpening their arguments for the inevitable showdown in the Supreme Court.

“It’s 1972 for marriage,” said National Organization for Marriage President Brian S. Brown, referring to the year before the Supreme Court legalized abortion nationwide in Roe v. Wade.

Declarations about the inevitability of same-sex marriage are also dismissed.

Advocates of same-sex marriage “are trying to quit while they’re ahead, but there’s still a lot left in this battle. It’s only the fourth inning,” said Carrie Severino, chief counsel of the Judicial Crisis Network, which follows federalism issues in major lawsuits.

“It’s by no means clear exactly what the [Supreme] Court will do. It’s very much in play,” she said.

Legal lockstep

In the year since the Supreme Court issued rulings in two same-sex marriage cases — which opened federal recognition of same-sex marriages and led to the reopened gay marriages in California — gay rights supporters have had an avalanche of victories, including one more in Wisconsin on June 6.

The result: a transformed national landscape on same-sex marriage that has taken even supporters by surprise.

“This is for everybody, so congratulations,” said a jubilant Lindsay Vandermay, who married Ashley Wilson at the stroke of midnight May 23 in Philadelphia — in possibly the first same-sex nuptial in Pennsylvania’s history.

Their wedding reflected Pennsylvania’s status as the 19th state to permit same-sex marriage, up from a dozen states a year ago.

More rulings are on their way: With the filings of two lawsuits in North Dakota this month, every “holdout” state has legal action related to same-sex marriage.

Every recent political vote and court ruling, including in Illinois and Utah, has favored same-sex marriage advocates in decisions that, at times, resorted to passionate prose. As part of his May 20 ruling overturning Pennsylvania’s traditional man-woman marriage laws, U.S. District Judge John E. Jones III urged the nation to drop all legal bans on same-sex marriage “into the ash heap of history.”

In a May 19 ruling in Oregon, U.S. District Judge Michael McShane advised people not to worry about same-sex marriage leading to “a slippery slope” with no moral boundaries. “Let us look less to the sky to see what might fall; rather, let us look to each other and rise,” the openly gay judge wrote.

Traditional-marriage supporters are unmoved by such pleas or by polls showing rising acceptance of such unions.

“Ash heaps” aside, “history leaves no doubt that marriage exists to connect children to their mother and father,” said Jim Campbell, legal counsel at the Alliance Defending Freedom. Many people of good will still want to preserve marriage as a man-woman union to further that vital social good, and “we believe they have that right that the question of marriage is reserved to the people,” he said.

Clock ticking

No one knows when the Supreme Court will answer the question of whether voter-passed state amendments banning same-sex marriage are constitutional, but the clock is ticking.

A split among the circuit courts is virtually assured: A 2006 ruling in the 8th U.S. Circuit Court of Appeals said Nebraska’s man-woman marriage amendment did not violate the 14th Amendment’s equal protection clause. A contrary ruling could come down in the six other regional circuit court cases.

Hundreds of busloads of people who want to keep marriage a man-woman union are expected to descend on Capitol Hill for the March for Marriage.

Former Arkansas Gov. Mike Huckabee and former Sen. Rick Santorum are among the scheduled speakers at the event, which will start near the west side of the Capitol and end at the Supreme Court, not unlike the annual March for Life.

As for the arguments, many legal scholars agree with the rulings in support of same-sex marriage. Federal judges “seem to be coalescing around a view that these laws are facially unconstitutional,” George Washington University Law School professor Jonathan Turley wrote recently.

Ms. Severino of the Judicial Crisis Network is among those who are not convinced that the lower courts have it right.

The core questions are “What does the U.S. Constitution say?” and “What does the U.S. Constitution require?” Ms. Severino said.

Voters may want — and choose — to enact same-sex marriage, but having a court rule it mandatory is a different question, she said. “I think that to argue that the Constitution requires something that until the last decade or so has been completely unheard of in the history of humanity is really a stretch.”

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