What if they passed a law and nobody enforced it?
That hasn’t happened with state bans on same-sex marriage – yet. But the political momentum is in that direction as state authorities announce that they will not enforce laws that ban gay marriage and as federal judges rule against such laws.
The latest state to do so is Oregon, where Attorney General Ellen Rosenblum announced this week that the state’s department of justice “will not defend the prohibition in our state's constitution against marriages between people of the same sex.”
“The Equal Protection Clause of the US Constitution gives people the right to be treated equally by their government, unless there is a good reason for unequal treatment. That is, any time the government establishes different sets of rules or laws for different sets of people, there must at least be what the law calls a ‘rational basis’ for those differences,” Ms. Rosenblum explained. “The law in this area is developing and it is now clear that there is no rational basis for Oregon to refuse to honor the commitments made by same-sex couples in the same way it honors the commitments of opposite-sex couples.”
The situation in Oregon mirrors that of the Obama administration, which announced that it would no longer defend in court the federal Defense of Marriage Act (DOMA), which defined marriage as between one man and one woman.
Before Rosenblum’s announcement, fellow Democratic attorneys general Kamala Harris of California, Mark Herring of Virginia, Lisa Madigan of Illinois, Kathleen Kane of Pennsylvania, and Catherine Cortez Masto of Nevada also refused to defend lawsuits challenging their states’ bans on gay marriage.
Recent federal court cases have moved the issue toward marriage equality as well.
• In Utah, Judge Robert Shelby wrote that “the Fourteenth Amendment requires that individual rights take precedence over states’ rights where these two interests are in conflict.”
• “Equal protection is at the very heart of our legal system and central to our consent to be governed,” Judge Terence Kern wrote in an Oklahoma case, “It is not a scarce commodity to be meted out begrudgingly or in short portions. Therefore, the majority view in Oklahoma must give way to individual constitutional rights.”
• In an Ohio case involving two men legally married in another state, Judge Timothy Black declared that “once you get married lawfully in one state, another state cannot summarily take your marriage away, because the right to remain married is properly recognized as a fundamental liberty interest protected by the Due Process Clause of the United States Constitution.”
• In Kentucky, Judge John G. Heyburn II wrote: “Once the government defines marriage and attaches benefits to that definition, it must do so constitutionally. It cannot impose a traditional or faith-based limitation upon a public right without a sufficient justification for it. Assigning a religious or traditional rationale for a law, does not make it constitutional when that law discriminates against a class of people without other reasons.”
“The beauty of our Constitution is that it accommodates our individual faith’s definition of marriage while preventing the government from unlawfully treating us differently,” Judge Heyburn wrote. “This is hardly surprising since it was written by people who came to America to find both freedom of religion and freedom from it.”
• In Virginia last week, Judge Arenda Wright Allen ruled that Virginia’s ban on same-sex marriage is unconstitutional. Defenders of the law had argued that traditional man-woman couples are better for the upbringing of children.
Dismissing this assertion, Judge Allen wrote: “Government interests in perpetuating traditions, shielding state matters from federal interference, and favoring one model of parenting over others must yield to this country’s cherished protections that ensure the exercise of the private choices of the individual citizen regarding love and family.”
Today, same-sex marriages are legal in 17 states and the District of Columbia. Given public opinion polls showing a majority of Americans – including a large majority of younger voters – now approving gay marriage, it seems likely that the number of such states will increase.
Meanwhile, court cases continue to push the issue, especially as it relates to the legality of out-of-state marriages in states other than where same-sex couples live.
NBC’s Pete Williams, who covers courts and legal issues, writes of “the avalanche of lawsuits working their way through state and federal courts, challenging laws that ban or restrict same-sex marriages.”
“Cases are now pending in all but eight of the 33 states that forbid gay couples to marry,” Williams reports. “Most have been filed since the US Supreme Court ruled last June that the federal government cannot refuse to recognize same-sex marriage in the states where it's legal.”
"Because of that decision, the dam burst," Jon Davidson, legal director of Lambda Legal, a gay rights organization that has been active in litigating the issue, told NBC.