- The Washington Times - Tuesday, May 27, 2014

With stunning swiftness, the legal landscape for same-sex marriage has been reshaped 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. The last state whose law against same-sex marriage hasn’t been challenged in court is set to face a lawsuit this week.

In the 11 months since the Supreme Court issued rulings in two same-sex marriage cases, gay rights supporters have seen an avalanche of victories. 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 Friday in Philadelphia — 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: Marriage-related lawsuits have been filed in every “holdout” state except North Dakota, and activists promise to challenge that state’s statute before the summer is out.

From Illinois to Utah, every recent political vote and court ruling has favored same-sex marriage advocates in decisions that at times resorted to passionate prose. As part of his Tuesday 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 to not 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.

The National Organization for Marriage filed a motion Tuesday with Supreme Court Justice Anthony M. Kennedy asking him to stay the imposition of same-sex marriage in Oregon so the group can pursue its motion to intervene in the case.

Opponents of same-sex marriage are unmoved by pleas or by polls showing steadily rising acceptance of such unions.

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

“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.

Opponents also reject declarations about the inevitability of same-sex marriage.

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 Judicial Crisis Network, which follows federalism issues in major lawsuits.

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

Momentous decade

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 from any of the cases now in any of five other regional circuit court cases.

Same-sex marriage was birthed in the Massachusetts Supreme Judicial Court’s 4-3 ruling in Goodridge v. Massachusetts Department of Public Health in November 2003.

This month marked the 10-year anniversary of the first day for same-sex marriage in the United States, May 17, 2004.

Mary Bonauto of Gay & Lesbian Advocates & Defenders, the lead attorney for the original gay plaintiffs, recalled that she was brought to tears when she heard the minister say to one gay couple, “By the power vested in me by the Commonwealth of Massachusetts “

“That had never happened before legally in this country. It felt like the cage had been lifted off, and it was just a different world from that point forward,” Ms. Bonauto said in an interview with NPR.

Same-sex marriage was next legalized in Connecticut in 2008, and then, like dominoes, in Iowa, Vermont, New Hampshire, New York, Washington, Maryland, Maine, Delaware, Rhode Island and Minnesota. The District of Columbia joined the legal wave of same-sex nuptials in 2010.

The Supreme Court’s June 2013 ruling in Hollingsworth v. Perry cleared the way for California to become the 13th state with same-sex marriage, and New Jersey, Hawaii, Illinois and New Mexico soon followed. In recent days, Oregon and Pennsylvania became the 18th and 19th states with same-sex marriage because of political decisions not to appeal court rulings.

“Massachusetts was America’s ‘cradle of liberty,’ and the freedom to marry first won there will soon be shared by all Americans, no matter where they live,” said Evan Wolfson, founder of Freedom to Marry, an organization that seeks legalization of same-sex marriage in all 50 states.

The group’s “Roadmap to Victory” includes court and legislative victories, plus widening U.S. support of same-sex marriage to 60 percent or more by 2016.

The 60 percent goal appears to be on track: A recent Gallup Poll found a record 55 percent support same-sex marriage, driven by nearly 80 percent support by young Americans.


But people like Julie Lynde of Eagle, Idaho, reject any notion of the inevitability of universal legal same-sex marriage.

Idaho has been “caught in that same cultural feeding frenzy” as other states, said Ms. Lynde, executive director of Cornerstone Family Council, referring to a recent court ruling striking down Idaho’s voter-passed marriage amendment.

Idaho citizens and their lawmakers will fight to defend it, she said, because they understand the right to self-governance as well as the importance of traditional marriage, states’ rights and religious liberties.

Gallup may show Ms. Lynde in the minority, but other polls say she has lots of company.

A recent Politico poll of 867 likely voters in this year’s political battleground states found that 52 percent oppose same-sex marriage. A poll this year of 801 Republican and Republican-leaning voters by the Family Research Council and American Values found that 82 percent believe marriage should be defined “only” as a union between a man and a woman. A March poll by Rasmussen found an even split, with 43 percent of 1,000 likely voters in support of same-sex marriage and 43 percent against it.

“Americans are starting to realize that marriage is about a whole lot more than two people who love each other. It’s about conscience rights and religious liberty,” said Tony Perkins, president of the Family Research Council, citing public outcries over people losing their jobs or livelihoods because they didn’t support same-sex marriage.

Hundreds of busloads of people who want to keep marriage a man-woman union are expected to attend the March for Marriage on Capitol Hill on June 19. Former Arkansas Gov. Mike Huckabee will address the event, which will start near the west side of the Capitol and end at the Supreme Court. The event’s similarity with the annual March for Life in January is not accidental.

“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.

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 after last week’s rulings.

Ms. Severino of the Judicial Crisis Network is among those who are not convinced 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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