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Fast and Furious: Same-Sex Marriage After DOMA

October 20, 2013

Late last June, a one-vote majority of the U.S. Supreme Court ruled that same-sex marriages that are validly performed under state law must be recognized by the federal government, and validly married same-sex couples must be afforded all of the rights and obligations the federal government affords to opposite-sex couples. The Court struck down the section of the federal Defense of Marriage Act, or DOMA, that prohibited federal recognition of state-sanctioned same-sex marriages.

At the same time, the Court dismissed the appeal of the California Proposition 8 case, leaving in place lower court rulings that Proposition 8 was unconstitutional, and therefore allowing same-sex marriages to proceed in California.

Since then, marriage equality advocates have proceeded forcefully on three fronts: legislative, judicial, and popular. In many states, advocates are simultaneously pressing multiple approaches, and developments are coming so fast it’s hard to keep up.

Tomorrow, New Jersey becomes the 14th state to allow same-sex marriage. The Democrat-dominated New Jersey legislature passed marriage equality legislation in February 2012, but Republican Governor Chris Christie vetoed it. Legislators have until the end of 2013 to override the veto, but have yet to secure the super-majority needed – although progress has been made.

Meanwhile, the New Jersey courts have been considering legal challenges. In 2006, the New Jersey Supreme Court ruled that same-sex couples are entitled to substantial equality with opposite-sex couples, and the legislature responded by enacting a civil union law that afforded same-sex couples the same rights under New Jersey law as opposite-sex married couples enjoy. But the lawsuit continued, with the plaintiffs contending that denying the “marriage” label to same-sex couples was by itself a denial of equal treatment.

Before that issue was resolved, the Supreme Court issued its DOMA ruling. At that point, the plaintiffs contended, New Jersey law had to confer the marriage label on same-sex unions in order for same-sex couples to be eligible for federal marriage rights – and, absent federal marriage rights, same-sex couples in New Jersey were not getting substantially equal treatment.

Last month, the New Jersey trial court agreed, and ordered New Jersey to permit same-sex marriages beginning on October 21. Governor Christie appealed to the New Jersey Supreme Court, and asked for a stay of the lower court’s ruling pending final outcome of the appeal. His request was denied, and therefor same-sex marriages will begin tomorrow as ordered by the trial court.

We can be sure that the New Jersey Supreme Court did not rule lightly on the stay request. To grant a stay, the court had to find that the appeal was likely to succeed. The court is certainly aware that if it denied the stay and allowed same-sex marriages, and then later sustained the appeal, the marriages solemnized while the appeal was pending would be in question, and the court would have created a mess. As a result, we can take the stay denial as a virtual guarantee that the court will rule that same-sex marriage must be permitted.

Hawaii is going through the same process, sort of in reverse. In Hawaii, the legislature in 1994 enacted a prohibition against same-sex marriages. But a lot has changed since then, and in fact in 2011, after several tries, the state legislature approved same-sex civil unions.

Meanwhile, federal litigation challenging Hawaii’s ban on same-sex marriages failed in the trial court and went up on appeal to the Ninth Circuit Court of Appeals. That is the same appeals court that rejected California’s Proposition 9 ban on same-sex marriage, although on narrow grounds not applicable to other states. The appeal was put on hold pending the outcome of the Supreme Court cases on DOMA and Proposition 8, but now it’s ready to proceed.

But it looks like Hawaii legislators will beat the Ninth Circuit to the punch. Democratic Governor Neil Abercrombie has called the legislature to a special session beginning October 28 to consider marriage equality legislation, and the Honolulu Civil Beat reports that the votes are there.

Presumably, once Hawaii adopts marriage equality legislation, the Ninth Circuit will dismiss the case as moot. But the Ninth Circuit won’t be left out in the cold – it also has pending an appeal in a Nevada case, where the trial judge rejected a marriage equality claim. That appeal will remain live, and will probably be decided some time in 2014.

Another interesting state is New Mexico, which is one of only two states left whose marriage statue neither explicitly permits nor explicitly prohibits same-sex marriages. (The other one is New Jersey.) After the Supreme Court decisions last June, several New Mexico county clerks began issuing marriage licenses to same-sex couples, reasoning that the constitutional guarantees of equal protection recognized by the Supreme Court in the DOMA case applied. Some of the clerks got sued for their efforts, so the state’s county clerks asked the New Mexico Supreme Court to rule on the issue and clear things up. Arguments are scheduled for October 23.

In Ohio, two men who were married in Maryland filed suit in July demanding that Ohio recognize their marriage. The matter has some urgency because one of the grooms is terminally ill, and death, ironically, is a time when marital status is financially most important. The trial judge issued a temporary order that Ohio recognize the marriage, finding that the men were likely to succeed on their claim that Ohio’s ban on such recognition is unconstitutional. Thereafter, the judge converted the case to a class action, and arguments whether a permanent injunction should be issued are scheduled for December 18.

The litigation with the best star power is a federal case challenging Virginia’s ban on same-sex marriage. The plaintiffs’ lawyers are Theodore Olson and David Boies, the conservative-liberal odd couple who brought the case that led to the invalidation of California’s Proposition 8. That case took four years to resolve, from initiation in the trial court to decision by the Supreme Court. I suspect this one won’t take as long.

Lots has changed since Olson and Boies filed their Prop 8 challenge in 2009. For starters, in 2009, less than five percent of the population lived in marriage equality states. Now, one-third of the population live in marriage equality states. Same-sex couples have been filing joint income tax returns and collecting survivor benefits on each others social security, and the sky has not fallen.

Sixteen countries now allow same-sex marriage – ten in Europe, but also three in South America, plus Canada, New Zealand, and South Africa. In addition to 13 American states and the District of Columbia, two Mexican jurisdictions permit same-sex marriage, and Israel recognizes same-sex marriages performed elsewhere.

American popular approval of marriage equality has more than doubled in less than 20 years. In 2013, for the first time, popular approval exceeded 50 percent by more than the polling margin of error. A Washington Post poll in March found 58 percent support for marriage equality and only 36 percent opposed.

In particular, public opinion has shifted in the states closest to adopting marriage equality. In New Jersey, for instance, the three major polls taken in 2013 show marriage equality advocates no lower than 59 percent and opponents no higher than 31 percent. In New Mexico, a September poll showed advocates leading, 51 – 42. An August poll in Hawaii has advocates ahead by 54 – 31. In Nevada this month, it was 57 – 36. Even in Virginia, it’s 56 – 36.

2013 has been a stunningly successful year for same-sex marriage advocates. Already this year, on top of the DOMA decision, six states representing 20 percent of the country’s population have begun issuing marriage licenses to same-sex couples. When Russian President Vladimir Putin took to the New York Times op-ed page to lecture Americans on the proper conduct of a democracy in today’s world, even conservatives like Senator John McCain condemned Putin for hypocrisy, explicitly citing Russia’s legislative efforts to suppress homosexuality. The spectacle of American conservatives admonishing Russia for poor treatment of gay people was definitely a high point of the year.

And 2013 ain’t even over.

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