This week marks the 10th anniversary of when Massachusetts became the first state to legalize same-sex marriage.
As it happened, that date in 2004 also marked the 50th anniversary of Brown v. Board of Education, the landmark US Supreme Court decision that outlawed racially separate-but-equal public schools. “Civil rights karma,” gay rights advocate Evan Wolfson quipped at the time.
Since then, the legal, political, and social movement to recognize gay marriage has spread significantly.
Seventeen states and the District of Columbia now allow same-sex couples to marry. Civil unions or domestic partnerships are legally recognized in three more states.
In all, according to the advocacy group Freedom to Marry, more than 38 percent of the US population lives in a state that either has the freedom to marry or honors out-of-state marriages of same-sex couples. The figure exceeds 40 percent when civil unions, domestic partnerships, or other forms of protection for gay couples are added.
Meanwhile, Americans are more and more willing to accept something that a generation ago was viewed by most as a crime if not a sin, antithetical to religious doctrine and practice.
Gallup reported last year that support for gay marriage had essentially doubled since 1996 – from just 27 that year to 44 percent in 2010 to 53 percent now.
Given the difference in acceptance among age groups, that trend seems likely to continue. Among those 50-64 years old, 46 percent support legalizing same-sex marriage; among 18-29 year-olds, the figure is 70 percent.
“In 1996, about the time President Bill Clinton signed the Defense of Marriage Act that denied federal government recognition of same-sex marriages, Americans were decidedly against legalizing gay marriage,” Gallup reported. “Since that time, public opinion on the issue has changed significantly, and now it appears a stable majority is in favor of allowing same-sex couples to legally marry.”
Like President Obama, most Americans’ attitude toward gay marriage has “evolved,” and so too have the courts.
In challenges to state bans on same-sex marriage, federal judges in Utah, Ohio, Kentucky, and Virginia have moved the issue toward marriage equality.
“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 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.”
In Arkansas last week, Pulaski County Circuit Judge Chris Piazza ruled that the 2004 voter-approved amendment to the state constitution violates the rights of same-sex couples, prompting a Fox News headline that read: “Arkansas first Bible Belt state to issue same-sex marriage licenses a day after ban lifted.”
“This is an unconstitutional attempt to narrow the definition of equality,” Judge Piazza wrote. “The exclusion of a minority for no rational reason is a dangerous precedent.”
In a landmark decision last June, the US Supreme Court struck down part of the federal Defense of Marriage Act, and in a separate decision dismissed an appeal supporting a ballot initiative that banned same-sex marriages in California (Prop. 8).
As Monitor legal affairs correspondent Warren Richey wrote then:
“The twin decisions did not address whether there is a fundamental right to same-sex marriage under the US Constitution. But the DOMA decision appears to have laid the legal groundwork for future cases challenging state laws banning same-sex marriages.
“As such, the court’s actions represent clear and important victories for gay rights advocates in their fight for equal marital rights for gay men and lesbians. At the same time, the decisions represent a significant setback for those seeking to maintain the traditional definition of marriage as a union between one man and one woman.”
Meanwhile, another major US institution is moving in the same direction.
The Pentagon has done away with its “don’t ask, don’t tell” ban on openly-gay military personnel serving in uniform, and the Defense Department now provides benefits, including health insurance and base housing, to same-sex spouses of US troops.
Legal challenges to laws banning same-sex marriage – and to recent court decisions knocking down such bans – continue around the country, and some state attorneys general have announced that they will not defend such bans.
Given what’s happened with public attitudes and court decisions in the ten years since Massachusetts became the first state to legalize same-sex marriage, that trend is likely to continue.