The Death of Mainstream Legal Opposition to Gay Marriage in America

Coming right off the back of a similar ruling in Oregon, the recent Pennsylvania Supreme Court decision against the state’s same-sex marriage ban made it the 19th state, alongside the District of Columbia, to allow gay marriage (or, depending on your tolerance for semantics, the 25th – if you include states that currently don’t disallow it). In striking down the ban, District Court Judge John E. Jones III, a George W. Bush appointee, stated emphatically that:

“We are a better people than what these laws represent, and it is time to discard them into the ash heap of history.”

The decision, made just a few days after the 10th anniversary of the first American gay marriage legislation, has brought with it several noteworthy milestones in the country’s stroll towards equality. For reference, an interactive map with a quick breakdown of the gay marriage situation in each state is available here. The Pennsylvania ruling has consolidated the northeast as the second American region (alongside the states of the Pacific coast) to boast full marriage equality. While progress has largely followed the familiar ‘two-steps-forward-one-step-backwards’  approach to progressive reform in the United States, this week’s decision marked a staggering 14th straight victory for advocates of equality.

It would seem that, for the time being, momentum is on the side of justice. At the moment, approximately 48% of Americans live in a state with full marriage equality. When considering the changes brought by the recent decisions in Oregon and Pennsylvania and the relative estimated density of each state’s gay residents, it’s possible that the majority of gay Americans can now marry in their home state. Additionally, a recent Gallup poll has indicated that a record-high (55%) percentage of Americans agree that “marriages between same-sex couples should… be recognized by the law as valid, with the same rights as traditional marriages”, as seen below.

Unsurprisingly, the figures also show overwhelming support for same-sex marriage among Millennial Americans, with the 18-29 age group nearly twice as likely to support it as those in the 65+ bracket (78% vs. 42%). It seems likely that the younger generation is poised to drag the country into a relatively progressive future through sheer electoral brute force.

Amusingly, Judge Jones’ decision made reference to the Federal Supreme Court Justice (and prominent conservative judicial activist) Antonin Scalia’s caustic dissent against the Court’s 5-4 ruling against the Defense of Marriage Act’s exclusionary definition of marriage in United States v. Windsor. Couched within his tirade against “same-sex marriage (or indeed same-sex sex)”  is a prediction that the actions of the majority in striking down DOMA “arms well every challenger to a state law restricting marriage to its traditional definition”. Regardless of the tone and intent with which Scalia’s prognosis was produced, several publications across the political spectrum have noted just how prophetic it has turned out to be.  

Indeed, in the summer of 2014 we have reached an interesting point where a District Court Judge appointed by George W. Bush is citing language written by a Supreme Court Justice appointed by Ronald Reagan in striking down popular state-level bans on gay marriage. Indeed, he is in good company, with the vast majority of post-Windsor pushes for equality coming via judicial review attached to explicit references to the landmark case (see above).

Dr. Martin Luther King Jr. famously said that “the arc of the moral universe is long, but it bends towards justice”. In America that arc often proves itself to be frustratingly long, but it continues to bends nonetheless. Progress in establishing national marriage equality has, at times, been frustratingly lethargic, but the wave of recent District Court decisions is certainly cause for cautious optimism.

Update (11/08/14): The streak of unbroken pro-marriage equality decisions was finally ended by Roane County Circuit Judge Russell E. Simmons, Jr. in Tennessee.  In his decision, Judge Simmons Jr. said that “neither the Federal Government nor another state should be allowed to dictate to Tennessee what has traditionally been a state’s responsibility”. Amusingly, the case of Borman vs. Pyles-Borman was, in fact, brought to the court in order to determine the state’s ability to provide the couple with a divorce (by recognizing the validity of their marriage which took place in Iowa). Thus, the ruling effectively forced the couple to stay married in Tennessee.

Leave a Reply