Marriage Equality’s Remarkable Winning Streak

by Patrick Appel

Jay Michaelson worries that the recent state marriage equality rulings are on a collision course with the Supreme Court:

[T]he lofty rhetoric of these [state] decisions and their legal reasoning are a far cry from Justice Anthony Kennedy’s opinion in United States v. Windsor, which invalidated the Defense of Marriage Act less than a year ago. As a challenge to a state marriage amendment or law now seems destined to end up at the Supreme Court, probably in the next term, these discrepancies should be cause for concern.

Emily Bazelon isn’t fretting:

[T]he momentum raises a question no one would have dreamed of a year ago: Will gay marriage become the law of the land without the Supreme Court doing anything more? … Add it all up, including Pennsylvania, and we’ve arrived at 29 states where same-sex marriage is legal or on its way there unless an appeals court blocks it—past the halfway point and far past the tipping point. (Yes, 32 states still have laws or constitutional amendments on the books that deny marriage equality to same-sex couples. But those are the laws that are toppling like a line of dominoes.)

We’ve arrived here so much faster and more agreeably than anyone could have predicted even a year ago, when the challenges post-Windsor looked like they would split the district courts, take their time wending their way through the appellate process, and maybe arrive back at the Supreme Court in, say, 2017, safely after the next election. Instead, no judge wants to write the opinion denying the benefit of marriage. Judge John Jones of federal district court in Pennsylvania, who issued [yesterday’s] ruling, was endorsed by none other than Rick Santorum, beloved of the religious right. Judges aren’t supposed to rule by the polls, but that doesn’t mean they’re unaffected by the rising tide of public support, especially among young people. As Northwestern University law professor Andrew M. Koppelman said to Adam Liptak in the New York Times: “It is becoming increasingly clear to judges that if they rule against same-sex marriage their grandchildren will regard them as bigots.”

Dale Carpenter analyzes the PA ruling:

Unlike most other district courts recently, Judge Jones held that same-sex couples have a fundamental right to marry.  He held that the Pennsylvania couples were not seeking a “new” right but only participation in an old one, the right to marry.

Carpenter also points out that, “unlike most other district courts, he determined that sexual-orientation discrimination triggers intermediate scrutiny”:

This intermediate-scrutiny approach seems to me to be the most doctrinally grounded way to strike down bans on same-sex marriage. It leaves in place the deferential caste of rational-basis review. It also makes clear what every court seems to have recognized recently: that there is a long history of discrimination against gays and lesbians, that sexual orientation is unrelated to individual merit, that it continues to be difficult for homosexuals to get legal protection through the political process in many areas of the country, and that there is not an “exceedingly persuasive” reason to exclude gay couples from marriage (even if there is a jurisprudentially “rational” one).

John Culhane notes that the plaintiffs in PA “won on both liberty and equality arguments”:

Early on, the marriage equality litigation focused on the denial of equality to same-sex couples. That was thought to be a more sympathetic strategy than trying to claim that the fundamental right to marry (a liberty interest, constitutionally speaking) extended to same-sex marriages. That’s because the Supreme Court has sometimes defined “fundamental rights” quite narrowly and limited those rights to those who were historically protected. But increasingly, courts are finding that the fundamental right to marry means a right to marry the person of one’s choice, history aside. That’s what Judge Jones held, with pointed reference to Loving v. Virginia, where the high court struck down an anti-miscegenation law. That states had long barred interracial marriages didn’t make Virginia’s historical choice acceptable, and it’s no longer acceptable in the same-sex marriage context, either.