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A lot more court action on same sex marriage is coming

One way or another, 2014 is going to be a milestone year for marriage equality.

RedEquality

Advocates on both sides of the gay marriage debate predicted that the U.S. Supreme Court ruling in June that overturned part of a federal ban on gay marriage would create a pathway for states to act.

They were right.

In the six months since the decision, the number of states allowing gay marriage has jumped from 12 to 18, a trend that started before the high court ruling that’s been reinforced since. Judges in New Mexico, Ohio and, most surprisingly, conservative, Mormon-heavy Utah all ruled in favor of same-sex marriage in just the past week. Both Utah’s case and another in Nevada will next be heard by federal appeals courts, putting them on the path toward the high court. Ohio’s case, which recognized same-sex death certificates, also will likely be appealed.

The series of court decisions has many asking: When will the Supreme Court step in and settle the issue for good?

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More state rulings in favor of gay marriage could be in the works in 2014. The thinking goes, if it can happen in ultra-conservative Utah, it can happen anywhere. Utah is home to The Church of Jesus Christ of Latter-day Saints, which still teaches its members homosexuality is a sin despite a softening of their rhetoric in recent years.

“The ruling has had a symbolic impact already,” Jon Davidson, director of Lambda Legal, which pursues litigation on LGBT issues nationwide. “It is recognition that the nation’s attitudes, from public to legislative to judicial, are changing very rapidly in all parts of the country.”

“And the opponents, many of them, are moving on,” said William Eskridge, a professor at Yale Law School. “We are not seeing the same kind of Armageddon rhetoric we saw in the 1990s.”

A federal judge in Michigan will hear testimony from experts in February before deciding whether to throw out the state’s constitutional ban on same-sex marriage. Two federal lawsuits in Virginia, including one being led by the same legal team that challenged California’s ban, are moving forward.

Eskridge disagrees with those who say the Supreme Court won’t act, predicting justices will get involved in the gay marriage dispute in the next year or two.

Different branches of the government are acting, he said — lawmakers, state courts, and federal courts — which could convince the justices to step in.

By “state rulings” they really mean “federal district court rulings”. You can add Texas to the list, though it’s just at the injunction stage, as was Utah. You want to see Armageddon rhetoric, just wait and see what happens if Judge Orlando Garcia puts the kibosh, however temporarily, on Texas’ Double Secret Illegal Anti-Gay Marriage constitutional amendment. I don’t think we’re going to be able to escape that being a campaign issue next year.

Speaking of campaign issues, Indiana may be going old school.

Dominated by Republicans and steeped in traditional values, Indiana seemed among the least likely places to become a battleground in the nation’s debate over same-sex marriage when the legislature overwhelmingly chose in 2011 to push forward a state constitutional amendment barring gay couples from marrying.

But in the two years since, the landscape has shifted as voters, lawmakers and courts began recognizing same-sex marriage in places like Maryland, Minnesota, New Jersey and New Mexico and as the United States Supreme Court declared parts of the federal Defense of Marriage Act unconstitutional. In just the past few days, a federal judge struck down a ban on same-sex marriage in Utah, home of the Mormon Church, and a federal appeals court rejected a request to halt the marriages on Tuesday. A federal judge in Ohio found that same-sex marriages should be recognized on death certificates.

So suddenly Indiana, where lawmakers in the coming weeks are expected to call for the second vote needed to put a ban before voters in the fall elections, is now in a far more tense, unpredictable and closely watched spot than anyone here had imagined — a test case in whether a state will impose new limits on same-sex marriage in this fast-moving political and legal environment.

“What happens in Indiana is critical,” said Brian Brown, president of the National Organization for Marriage, which opposes same-sex marriage. He and other opponents hope the outcome here will reveal that shifts in public sentiment over the last few years are not as widespread as some may think.

Supporters of same-sex marriage, however, are pouring money and effort into defeating the measure in Indiana, a possibility that seemed unthinkable not long ago but one that advocates now insist is conceivable. They say victory in a conservative place like Indiana would be a turning point in a fight that has largely been waged in more predictable, left-leaning states or in the courts. “That would send a clear message to opponents of marriage equality that it’s time to be done fighting this battle,” said Sarah Warbelow, state legislative director of the Human Rights Campaign.

As lawmakers prepare to return for a new legislative session in January, it is an especially awkward spot for Republicans, who dominate both chambers of the General Assembly. With an election year ahead and the risk of primaries in May, the issue is pitting socially conservative groups, who are urging a constitutional ban, against sometime allies in the state’s business community, who say a ban could cause Indiana economic harm.

Few Republicans now seem eager to talk about the issue, and some legislative aides said it was not entirely certain who would formally file the legislation in January.

Sure does suck when the wedge issue turns you into the fulcrum, doesn’t it? With all that’s happening you might think that Indiana Republicans would be wise to wait and see where the courts are going before pursuing legislation that may be pre-declared unconstitutional, but that would require their GOP primary voters to behave rationally. Good luck with that.

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  1. […] the Kuff has stayed on top of the legal action in the Utah same sex marriage litigation and related […]

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