On Jan. 6 same-sex marriage became legal in Florida, which is now one of 37 states wherein gay couples can legally marry. After four-and-a-half decades of activism and advocacy, gay rights supporters were vindicated when, as of the first week of 2015, over 70 percent of Americans live in a state where two people of the same sex can marry and enjoy the same legal benefits and protections as heterosexual married couples.
However, same-sex marriage is still banned outright in 10 states and two U.S. territories. It is still technically banned in three other states, owing to indefinite stays of differing court orders. The legality is still up in the air in a few other states. Thus, if someone should ask whether or not gay marriage is legal in America, the answer is still yes-and-no.
Over the past decade, gay marriage has been one of the fastest moving issues in American politics. Before 2003, homosexual sex was illegal in half of the U.S. Just 12 years later, most gay and lesbian couples have the right to marry if they so wish. If you do not study politics, let me tell you: this is an astonishingly quick change in policy.
Attaining marriage equality has been a cornerstone issue of the gay rights movement for at least the past 30 years. When their interests were systematically ignored by elected legislators, gay rights advocates turned to the U.S. court system to seek just and equal treatment by their government. After several key victories in various local and state courts (along with many more crushing defeats), gay marriage began being legalized in the more liberal states – Massachusetts, New York, etc.
In June 2013, the U.S. Supreme Court ruled by a 5-4 split in U.S. v. Windsor that the federal Defense of Marriage Act (DOMA), which defined marriage outright as a union between one man and one woman, was unconstitutional under the 14th Amendment, which guarantees equal protection under the law for all American citizens. Gay marriage became a legitimate civil right, and judges throughout the U.S. saw the proverbial writing on the wall: a free country cannot abide open, state-sanctioned discrimination against same-sex couples.
Over the next year-and-a-half, federal and state courts across the country began striking down state bans on same-sex marriage. By October of 2014, five cases arising from three federal appellate circuits were being moved for review by the U.S. Supreme Court. In a surprise turn, the Supreme Court decided not to hear appeals in those cases, effectively allowing for the legalization of same-sex marriage throughout most of the country.
However, state bans have been upheld by federal and state courts for Alabama, Georgia, Kentucky, Louisiana, Michigan, Nebraska, North Dakota, Ohio, South Dakota and Tennessee. Additionally, bans are still in place in Arkansas, Mississippi and Texas, despite being ruled unconstitutional. The different interpretations of the U.S. Constitution’s equal protection components among these jurisdictions create an awkward legal situation. Theoretically, federal law should not vary by state.
Thus, the U.S. Supreme Court may be called on, yet again, to step in and settle the matter wholesale – a position the Court has been avoiding for the past few years.
Yet, this scenario seems inevitable.
“I would expect a Supreme Court ruling in favor of legal same-sex marriage nationwide pretty soon,” Michael Wellish, secretary of FSC Allies, an on-campus LGBT club, said. “It’ll be legal nationwide by July.”
There is indeed cause for optimism as experts and observers alike think gay marriage will be entirely legal within a few years. I too believe that my friends in Texas will soon have their marriage recognized by their state.
Photo by Tony Webster, Creative Commons