Civil and Human Rights

Despite top court, marriage inequality remains

How long will couples in the 20 states still banning same-sex marriage have to wait?


The Supreme Court’s stunning announcement Monday that it had declined to hear any of the seven marriage equality cases in which review had been sought prompted immediate and understandable joy among supporters of marriage equality. The court’s action cleared the way for same-sex couples to marry in the five states involved in the pending cases as well as in six other states within the jurisdiction of the three appellate courts whose rulings striking down state bans on same-sex marriage were potentially up for review. That adds 11 states to the 19 (plus the District of Columbia) in which marriage equality is already a reality. As the historic news flew around the country, commentator after commentator pronounced the battle for same-sex marriage effectively over. Maybe the marriage equality writing is on the wall — and I think it surely is — but the battle isn’t over until it’s actually over.


A Supreme Court denial of review is not a ruling on the merits. And while I agree it would invite “legal chaos” if the court at some later date were to hold that the Constitution does not require states to allow same-sex couples to marry, perhaps leading to the unraveling of same-sex marriages, it’s still legally possible that this could happen, though it is not morally conceivable. What if a conservative Republican is elected president in 2016, and one or two more justices who share the ideology of Antonin Scalia and Samuel Alito are confirmed to the bench?


In addition, even assuming that today’s action does send a strong signal as to where the present court is headed, what about the states not affected by today’s action? Practically lost in all of the celebrating is the recognition that there are still 20 states that prohibit same-sex marriage. That number may drop to 15 if you assume that the Ninth Circuit will soon rule in favor of marriage equality in the cases argued before it last month, but for now it remains 20. Those states include Texas and Florida — large population centers. How long must gay men and lesbians in those 20 states wait for their constitutional rights to equality and liberty to be recognized?


Is there genuine hope for gay men and lesbians in most of those states, barring Supreme Court action? The Fifth Circuit, with jurisdiction over Texas, Louisiana, and Mississippi — all states with bans on same-sex marriage — is one of the most conservative in the country. Will that court decide that states can define marriage for themselves, and that the Constitution allows them to discriminate against same-sex couples? It’s certainly possible. And if an appellate court eventually does uphold a marriage ban, will the Supreme Court agree to review that case? How long will it take to act?


There’s a potential sad parallel here from the history of state bans on interracial marriage. In 1948, the California Supreme Court became the first state court to strike down such a ban; it would take another 19 years for the Supreme Court, in Loving v. Virginia, to hold that the U.S. Constitution prohibits such laws. In the intervening years, a number of states repealed their own laws, but at the time of the court’s ruling in Loving, 16 states still prohibited interracial marriage. How long would it have taken for those states to do the right thing in the absence of a Supreme Court ruling?


It’s not terribly surprising, to me, at least, that there’s a significant overlap between the states that, pre-Loving, still prohibited interracial marriage, and the states that, after today’s action by the court, still prohibit same-sex marriage. Many of them are in the deep South, some are border states. And just as those states had to be dragged kicking and screaming into respecting the fundamental right to marry of all persons regardless of race, I fear the same will be necessary for at least some of them when it comes to marriage equality for same-sex couples. While I don’t think that it will take 19 more years for nationwide marriage equality, every day that gay men and lesbians are denied their constitutional rights and suffer the harms that follow is one day too many. 


So my joy today is tempered by the sadness of knowing that, for so many gay men and lesbians in this country, marriage equality is still a constitutional promise not yet fulfilled.


This article appeared in at least the following additional outlets:


*  Montgomery (AL) Advertiser (online)

*  Baxter (AR) Bulletin (online)

*  Delmarva (DE) Daily Times (online)

*  Iowa City (IA) Press-Citizen (online)

*  Muncie (IN) Star Press (online)

*  Hattiesburg (MS) American (online)

*  Chillicothe (OH) Gazette (online)

*  Sheboygan (WI) Press 

*  Wausau (WI) Daily Herald


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