The race to legalize same-sex marriage in the nation’s state and federal courts has become a self-fulfilling prophecy, fueled by an unbroken string of pro-marriage rulings since the Supreme Court first weighed in on the subject last June.
As each decision strikes down state bans, it becomes more difficult for judges to ignore the opinions of peers who have found no constitutional basis to prevent gays and lesbians from having the same marriage rights as heterosexuals.
That trend, which reached a frenetic pace over the past two weeks with rulings in Arkansas, Idaho, Oregon and Pennsylvania, has created an aura of inevitability around the same-sex marriage movement. Two federal appeals courts are getting ready to rule in cases from Utah, Oklahoma and Virginia, one or more of which could reach the Supreme Court.
“With each one, it becomes harder for states to argue that these bans should be upheld, and it becomes harder for courts to uphold them,” says Camilla Taylor, marriage project director at Lambda Legal, one of several gay rights groups juggling multiple court cases. “No court wants to be the one court that got it wrong and upheld the discrimination.”
The peer pressure was evident in the Pennsylvania ruling last week, when federal District Court Judge John Jones III cited the opinions of colleagues from Texas, Ohio, Virginia, Utah and Idaho — the latter in a case decided one week earlier.
“We now join the 12 federal district courts across the country which, when confronted with these inequities in their own states, have concluded that all couples deserve equal dignity in the realm of civil marriage,” Jones said.
Advocates for same-sex marriage count 19 consecutive victories on matters big and small since the high court ruled that the federal government must recognize same-sex marriages performed in states where it is legal. The last significant loss came in federal district court in Nevada 18 months ago.
Those decisions have been accompanied by a steady increase in the percentage of Americans who support same-sex marriage, most recently at 55 percent in Gallup polls. Republican governors who had backed their state’s bans, such as Pennsylvania’s Tom Corbett, Wisconsin’s Scott Walker and Michigan’s Rick Snyder, have said they will obey the courts.
The juggernaut could slow or even go into reverse in the coming months as same-sex marriage cases are heard in less hospitable territory. A Texas case that has yet to be scheduled before the U.S. Court of Appeals for the 5th Circuit is one example; the 11th Circuit based in Atlanta is another.
Proponents of prohibitions, which remain in effect in 31 states, will hold their annual march in Washington next month. Two weeks earlier, conservative Republicans in Texas will rally in defense of that state’s gay-marriage ban.
Jim Campbell, an attorney with the Alliance Defending Freedom, which is defending gay marriage bans in Oklahoma, Virginia and elsewhere, predicts the string of lower-court decisions won’t affect appellate judges.
“It shouldn’t impact what each judge does,” Campbell said. During recent hearings before three-judge appeals panels at the 10th and 4th Circuits, he notes, “it wasn’t a case of every judge monolithically suggesting that the state’s case was a meritless one.”
In the Utah, Oklahoma and Virginia cases, two of the three judges on each appeals court panel appeared to side with the plaintiffs seeking the right to marry or have their marriages recognized. The judges voicing the most skepticism were outnumbered.
That may not be the case in other circuits such as the New Orleans-based 5th Circuit, which incorporates Texas, Louisiana and Mississippi and is dominated by Republican appointees.
“The test of success is not whether you win every single ruling in every single court,” said Evan Wolfson, who launched the advocacy group Freedom to Marry in 2003. “The test is whether you have the right answers, whether you have a critical mass of victories and whether you are conveying to the judges and justices that the country is ready.”
Lawyers representing same-sex couples say the array of state and federal district court decisions from judges appointed by Republicans as well as Democrats in virtually every part of the country should be persuasive.
“I think you would have to look at this growing tide and ask yourself, ‘Is it really possible that all of these people are wrong?’” said Matthew McGill of Gibson, Dunn & Crutcher, one of the lawyers representing Virginia’s gay and lesbian plaintiffs.
Over the next few months, lower court judges are scheduled to hear same-sex marriage cases in Colorado, Louisiana, Florida, Wisconsin and Alabama. Appeals of cases from Michigan, Kentucky and Tennessee could be argued in August, followed by Idaho and Nevada in September. Within weeks, North Dakota is likely to become the last state in the nation to be sued over its same-sex marriage ban.
Rulings could be rendered by the appeals panels in the Utah, Oklahoma and Virginia cases soon, triggering a new round of Supreme Court petitions. The justices could accept one or more cases for immediate review; hold them pending more lower court actions, possibly including a split among appeals courts; or allow circuit court decisions to be implemented, which could legalize gay marriage one region at a time.
The high court also could choose to hear a case with less sweeping implications. Some of those pending in Ohio, Kentucky and Tennessee seek to have existing same-sex marriages recognized in those states, often for purposes of adoption, health care or marital benefits.
“The recognition cases offer the court a choice,” said James Esseks, director of the Lesbian Gay Bisexual Transgender & AIDS Project at the American Civil Liberties Union, which is challenging same-sex marriage bans in 12 states. “They can take a piece of this issue, or they can take the whole thing.”
[Richard Wolf writes for USA Today.]