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Constitution Check: How strong is the same-sex marriage tide running?

October 22, 2013 by Lyle Denniston


Lyle Denniston looks at why it is hard to predict the progress of same-sex marriage across the nation, despite New Jersey’s move on Monday.                              


“The [New Jersey Supreme] Court has now spoken clearly as to their view of the New Jersey Constitution and, therefore, same-sex marriage is the law.”

– New Jersey Governor Chris Christie, in a statement released by his office Monday announcing that the state is dropping its court appeal seeking to prevent same-sex marriages from becoming legal in the state without a vote of the people.

“This win in New Jersey adds to the accelerating momentum we’ve built nationwide. Not only did we usher in a U.S. Supreme Court ruling that struck a mortal blow to federal marriage discrimination, bringing important legal protections to families in every state, but this year alone we’ve won the freedom to marry in five more states—and the year is not even over.  Before the end of 2013, we are working to add Hawaii, Illinois, and New Mexico to the freedom to marry column.”

 – Evan Wolfson, founder and president of the Freedom to Marry, an advocacy organization, following the withdrawal of the state appeal in the New Jersey case of Garden State Equality v. Dow.


Ordinarily, constitutional change of a basic nature takes a long time—sometimes, it takes generations. The guarantee of a right to vote for women—the first significant constitutional step toward sex equality—was first sought in 1878, and became a reality only 42 years later in the 19th Amendment. It took from the founding era in the 1780s until 1868—nearly nine decades—to get the promise of racial equality made a part of the Constitution, in the 14th Amendment.

By those measures, the campaign to achieve constitutional equality for gays and lesbians, in the basic opportunities in civic life—including marriage—is moving faster.  If one dates the gay rights revolution’s origin from the Stonewall riots in New York City’s Greenwich Village in 1969, the first achievement of an equal right to marry did not come until 2003, in Massachusetts—a span of 34 years.

But if the focus is solely on the campaign for a right to marry, beginning with a promising ruling by the Hawaii Supreme Court in 1993, it took only one decade for Massachusetts gays and lesbians to be the first to actually gain that right. And, from 1993 until 2013, it has taken only two decades for the campaign to succeed in 14 states, with promise of more in coming months. That is more than a third of the nation’s states, and just about a third of the total U.S. population.

Gay rights groups, of course, are increasingly optimistic, counting on momentum to give their campaign for marriage equality more successes—in courts, in legislatures, and in ballot measure campaigns. At the same time, there are more than 30 states that continue to ban same-sex marriage, by state statute or by constitutional provision. What would it take, then, to give the movement success across the nation?

The political reality at the moment—and one must stress that the reality might well change—is that full marriage equality will not come into being until the national Constitution recognizes it—either by court interpretation, or by formal amendment. In the near term, it is hard to predict that the end of this reality is in sight.

Take, for example, what has just happened in New Jersey—the 14th state to allow gays and lesbians to marry. The lesson of the campaign in New Jersey is that it will take a combination of changing political attitudes and some creative interpretation by state courts to assure marriage equality, and, in fact, the right may not arrive through a simple constitutional declaration that marriage is a fundamental right for same-sex couples, too.

That, of course, is what the campaigners for marriage equality hope will occur some day. But it did not occur in New Jersey that way.

Those couples in New Jersey won the right to marry through a quite creative interpretation of both the state constitution and the Supreme Court decision in U.S. v. Windsor last June, striking down a part of the federal Defense of Marriage Act—a decision which, by the way, did not itself declare an equal right to marry.

A judge in Trenton, New Jersey, did not rule that such a right was guaranteed by the state constitution, in so many words. In fact, that judge could not have ruled that way because the New Jersey Supreme Court seven years ago had declined to interpret the constitutional to mean that.

The legal syllogism used by the Trenton judge went something like this: The state court’s decision in 2006 declared that committed same-sex couples are entitled to equal access to all marital benefits, but not marriage itself—but the U.S. Supreme Court ruling in June said that same-sex couples already married are entitled to equal access to marital benefits, and therefore same-sex couples in New Jersey cannot enjoy equality unless the right to marry itself is recognized as one of the benefits open equally to them.

That kind of approach can only work in states where politics or court rulings have already established some foundation of equality for gay and lesbian couples, and the number of states that have done that is not a lengthy list. So, in the states where that foundation does not yet exist, marriage equality will only come about through either a bold new court declaration, a change of heart in the state legislature, or a new wave of popular support that can carry the day in a voter referendum.

There is, of course, one other way: The U.S. Supreme Court could be asked, in the quite-near future, to rule that same-sex couples do have a constitutional right to marriage equality. The Justices may be presented with that fundamental question sooner than some have expected. When that test does arise, as it will, what has been happening in the states may well help to shape the Justices’ reaction, but there is no guarantee of the outcome.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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