As the number of states legalizing same-sex marriage grows – it’s now 17, plus the District of Columbia – it was inevitable that this profound social issue with its civil rights and religious elements would see a similar escalation of activity in courts and legislatures.
As many as five more states could legalize gay marriage this year, and the trend in federal courts points in that direction as well.
In a landmark decision last June, the US Supreme Court invalidated the federal Defense of Marriage Act (DOMA). Since then, federal judges in Virginia, Utah, and Oklahoma have declared that gay marriage bans in those states are unconstitutional.
A federal judge in Kentucky has struck down a state law barring recognition of same-sex marriages performed in other states. And in Nevada, the state attorney general (a Democrat) and the governor (a Republican) have announced that they will no longer defend that state’s ban on same-sex marriages, which is what the attorney general in Virginia did before this week’s ruling there.
“A survey of publicly available opinions shows that in the eight months since [the Supreme Court’s DOMA decision], 18 court decisions have addressed an issue of equality based on sexual orientation,” write Drexel University School of Law associate professor David S. Cohen and legal-affairs journalist Dahlia Lithwick in the online magazine Slate. “And in those 18 cases, equality has won every single time.”
(Twelve of the 18 cases supporting equality “addressed a substantive aspect of marriage equality,” Cohen and Lithwick report. The other six cases “addressed different aspects of discrimination based on sexual orientation, such as discrimination on juries and employment benefits.”)
Meanwhile, candidates for higher office – including at least some Republicans – have shown a willingness to buck their party’s more conservative line on gay unions.
“Carl DeMaio is one of three openly gay Republicans running for Congress this year, and he would be at least the third to serve in the House if he wins,” the Wall Street Journal reported this week. But Mr. DeMaio has taken a step that none of the others has, airing a campaign ad that features a shot of him with his same-sex partner.
“The clips are brief,” the newspaper reported. “A shot of Mr. DeMaio holding hands with his partner, Johnathan Hale, as they march in a gay pride parade in 2012, followed by a clip of the San Diego candidate waving a rainbow flag that symbolizes the gay-rights movement.”
"This is who I am," Mr. DeMaio said. "It's something that's important to me. I want to embrace equality, and feel like the party should, too."
Fellow Republican Richard Tisei, who hopes to unseat an incumbent congressman in Massachusetts, notes on his campaign website that he and “his longtime partner, Bernie Starr, were married in 2013.”
As the Wall Street Journal points out, DeMaio and Mr. Tisei wouldn't be the first openly gay Republicans in Congress. Former GOP Reps. Jim Kolbe of Arizona and Steve Gunderson of Wisconsin disclosed their sexuality, but that was after serving for many years.
Although Republicans in the latest Gallup poll oppose same-sex marriage by 66-30 percent, as a whole most Americans say they’d vote for a federal law legalizing gay marriages in all 50 states – 52-43 percent, with 70 percent of younger Americans approving such marriages.
More illuminating may be the trend in some generally conservative states.
In Utah, for example, a recent poll by the Salt Lake Tribune found an even split – 48-48 percent – on whether same-sex couples in the state should be issued marriage licenses.
Sixty-four percent of Mormons said “no” to that question, but a clear majority of Mormons in the country’s most heavily Mormon state do approve of civil unions or domestic partnerships for same-sex couples (65 percent).
According to the Salt Lake Tribune, “The results reflect a remarkable turn since 66 percent of Utahns who participated in the 2004 general election approved Amendment 3, which limited civil marriage to a man and a woman and barred any state recognition of other relationships such as civil unions or domestic partnerships.”
All of this may constitute a trend, but it doesn’t yet signal nationwide legalization of same-sex marriage.
Although some may be challenged in ballot measures this year, more than 30 states have constitutional amendments or laws defining marriage as a union of one man and one woman. Which is why gay-marriage advocates believe their best tactic is to focus on the courts – especially since more and more judges at the district and appellate level have been appointed by President Obama.
One consequence of Obama's two elections has been a change in the composition of the courts, reports the Associated Press. Just over 60 percent of appellate judges were Republican appointees when Obama took office in January 2009. Just over five years later, Democratic appointees hold more than half the seats on appeals courts – a transformation magnified by majority Democrats who changed Senate rules last year to make it harder for the minority party to block the president's nominees.
According to the organization “Freedom to Marry,” there now are 46 marriage-related cases underway in 25 states.