Marriage Equality in Utah
On Election Day 2012, voters in five states cast ballots on questions related to marriage equality. Anti-gay forces were confident, with good reason – voter referendums on same-sex marriage had been hugely successful for them from the very first one, in Hawaii in 1998. But November 6, 2012, will go down in history as the day the popular tide turned on same-sex marriage. Voters sided with marriage equality in all five states: Iowa, Maine, Maryland, Minnesota and Washington.
In the afterglow of that unprecedented popular victory, marriage equality proponents set a goal of achieving marriage equality in six states during 2013: Delaware, Hawaii, Illinois, Rhode Island, Minnesota, and New Jersey. (The 2012 Minnesota voter referendum rejected a state constitutional amendment to ban same-sex marriage; the goal for 2013 was to enact marriage equality legislation.)
All six states have been won – although Illinois’ marriage equality law doesn’t take effect until next June.
On top of those six, when the U.S. Supreme Court declined last June to decide whether the federal constitution guarantees marriage equality rights, the Court’s decision had the effect of legalizing same-sex marriage in California, due to the procedural context of the Supreme Court’s decision.
And on the same day, the Supreme Court held that spouses in state-recognized same-sex marriages are constitutionally entitled to the same federal rights and obligations of state-recognized opposite-sex spouses. Although that decision did not technically cover the constitutionality of same-sex marriage bans, it made the constitutional question a serious and legitimate one.
Those Supreme Court decisions marked a judicial turning point as important as the popular turning point of seven months before. Those decisions showed the judicial way forward for marriage equality.
The legislative route to marriage equality is near an end. Before this week, 29 state constitutions had provisions barring marriage equality, and 16 states had adopted marriage equality. That left only five states where state legislatures could by statute authorize same-sex marriages: Indiana, New Mexico, Pennsylvania, West Virginia and Wyoming. None of those have any real short-term likelihood of legislative enactment and gubernatorial approval of marriage equality legislation.
But that leaves two options – amendment of state constitutions, and judicial action.
After the Supreme Court decision last June, state and federal court challenges to marriage inequality have proliferated so fast it’s been hard to keep up. There are now at least 35 legal challenges pending in the state and federal courts in 20 states.
On Thursday, the New Mexico Supreme Court unanimously ruled that the New Mexico constitution guarantees the right of same-sex couples to marry. Because the ruling was founded on the state constitution, the New Mexico Supreme Court is the final word – the case can’t be appealed to the U.S. Supreme Court. As far as I can tell, the decision is effective immediately, so lesbian and gay couples anywhere in New Mexico can now be married.
On Friday, the federal district court in Utah ruled that the state’s prohibition against same-sex marriages violates the U.S. constitution – specifically, the Fourteenth Amendment guarantees of equal protection of the laws and due process of law. The ruling took effect immediately, and gay couples have already begun to marry.
Utah officials are certain to appeal, and to ask for a stay of the district court ruling pending appeal, and the possibility that they will succeed is not negligible. There is as yet no federal appeals court decision on the constitutionality of state bans on same-sex marriage in the light of the U.S. Supreme Court precedents from last June. But for now, same-sex marriage is legal in 18 states and the District of Columbia; it is barred by state constitutions in 28 states; and it is barred by state statute in four states.
Marriage equality advocates in Oregon have collected more than enough petition signatures to put marriage equality on that state’s ballot next November, and popular polling there has been modestly favorable.
Eventually, the U.S. Supreme Court will hold that state prohibitions against same-sex marriage are unconstitutional, but we’re not there yet, for two reasons.
First, just logistically, there aren’t any cases that are all that close to getting to the Supreme Court. The Ninth Circuit Court of Appeals has a long-pending challenge to Nevada’s constitutional ban on same-sex marriage, but as far as I can tell the case hasn’t been argued yet, so it would not appear that a decision is imminent. The Utah case will presumably go to the Tenth Circuit Court of Appeals shortly, but obviously a decision isn’t imminent in that case, either – although a decision on a stay motion could tell us quite a bit about where the court is heading. Even once there is a court of appeals decision, the timetable for the Supreme Court to decide whether to consider the case, then the timetable for briefing and deciding the case, suggest that a Supreme Court decision before 2015 is unlikely.
Second, the Court generally does not issue this kind of blockbuster ruling on important social issues until the country has come much closer to consensus than we are on same-sex marriage. For instance, the Supreme Court did not reject anti-miscegenation laws until only 16 states still had them. The Court did not strike down anti-sodomy laws until only 14 states still had them. As of yesterday, 32 states still ban same-sex marriage.
So 2013 was a banner year for same-sex marriage. 2014 will be good, but probably not as good as 2013. We can expect continuing progress, case by case and state by state, for the next several years, ending in the not-too-distant future with the big Supreme Court victory that is all but inevitable.