Constitution Daily

Smart conversation from the National Constitution Center

After New York: where same-sex marriage is headed

June 27, 2011 by Lyle Denniston


In late June, 42 years ago, amid shouts of “Equality for Homosexuals,” gays and lesbians rioted against police after a raid on a gay bar, the Stonewall Inn in Manhattan’s Greenwich Village – an event that, some say, founded the gay rights movement.  Within a matter of days after this year’s Stonewall anniversary, gays and lesbians will be able to get married in New York State; the state legislature – not the federal Constitution – has just cleared the way.

Photo by Flickr user Fibonacci Blue

Adding the third largest state to the list of the handful that have taken that step has led to much talk about momentum in the gay equality movement.  So, too, have new opinion polls showing – for the first time -- that slightly more than half of those asked support same-sex marriage.

But much still depends upon what happens in the largest state – California.  And there, the U.S. Constitution will be the decision-maker.  A crucial hearing on the now-celebrated case of Perry v. Brown, challenging the constitutionality of California's "Proposition 8" same-sex marriage ban, will be held in the state Supreme Court in September.  And, within a few months after that, the same case goes back to a federal appeals court in San Francisco.  Somewhere down the road, a Supreme Court appeal seems certain.

And, in at least a dozen federal courts, from coast to coast, same-sex marriage is on the docket in constitutional cases.  So, where does the issue stand, and what is the outlook as of now?

It is necessary to keep the constitutional issue separate from the broader question of same-sex marriage as it arises in politics and in society at large, although all sectors of public life are having an impact on where the issue goes from here.

The question of whether the Constitution protects a right of same-sex couples to marry is a once-and-for-all kind of proposition: it does, or it doesn’t.   Elsewhere in American society, legislatures are taking different stances: New York’s legislators approved, but legislatures in Maryland and Rhode Island said no this year.   Politicians as a group, too, have an uneven voice on the subject, as do ordinary Americans.

Under the Constitution, the core issue is: Does the guarantee of equality before the law apply to marriage for all people, even those of the same sex who wish to marry?

Under the Constitution, the core issue is: Does the guarantee of equality before the law apply to marriage for all people, even those of the same sex who wish to marry?  The issue is, in the minds of some, an echo of a question the Supreme Court settled in 1967 when it ruled that marriage cannot be restricted to couples of the same race.

If, ultimately, the legal right to marry is decreed to be open equally to same-sex couples, that would instantly nullify clauses in 30 state constitutions that reserve marriage for a man and a woman, laws in 37 states and hundreds of federal laws that confine marriage benefits to couples of the opposite sex.   (With New York allowing same-sex marriages, only six states now do so, either by court ruling or by changes in laws. The others are Connecticut, Iowa, Massachusetts, New Hampshire, and Vermont, plus Washington, D.C.

The historic lawsuit in Perry v. Brown was put together by advocates and lawyers precisely to be an ultimate test of marriage equality for gays and lesbians, under the Fourteenth Amendment, because a state law is involved. That Amendment is, of course, the same one that led the Supreme Court to end racial segregation in the public schools, and in marriage.

A federal judge in San Francisco, now-retired Judge Vaughn R. Walker, last August struck down California’s voter-approved Proposition 8, which had put a ban on same-sex marriage into the state’s constitution.

Judge Walker’s decision is now awaiting review by the federal appeals court in San Francisco, the Ninth Circuit Court, but that tribunal has handed off the case temporarily to the California Supreme Court to decide whether any Californians can be in court to defend Proposition 8, since state officials refuse to do so.   Whatever the state court says on that point, Perry v. Brown goes back to the Ninth Circuit Court for a decision on whether the case can go forward at all, and, if it does, whether Judge Walker was right in striking down Proposition 8.   A final ruling even in the Circuit Court is not likely until some time next year.

Elsewhere in the country, the issue is being tested in highly visible cases in which the constitutionality of a federal law – the Defense of Marriage Act of 1996 – is involved.  Those cases are being tried under the Fifth Amendment’s guarantee of legal equality.  That guarantee is the same one that led the Supreme Court to strike down racial segregation in the public schools in the federal city, Washington, D.C.

The Obama Administration has raised the stakes in the Defense of Marriage Act cases by switching sides: it now agrees with same-sex couples that it is unconstitutional to exclude them from the hundreds of special benefits that federal law guarantees to married couples.  DOMA, as it is often called, reserves those benefits for marriages of a man and a woman, only.  (Even when Congress recently repealed the “don’t ask/don’t tell” policy that generally bars gays and lesbians from serving openly in the military, it kept intact the DOMA rejection of military benefits for married gay and lesbian service members.)  With the government switching sides on DOMA, the U.S. House of Representatives is now defending the law in federal courts.

But a victory for gay and lesbian couples in the DOMA cases would only benefit immediately couples who are entitled to marry under their own state laws.  One or more of the DOMA cases, too, are expected to go to the Supreme Court.

It is very likely that same-sex marriage will be a prominent issue in next year’s presidential and congressional election campaigns.  Court decisions in any of the test cases now unfolding, of course, could help push that issue higher on campaign agendas.


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