However the Supreme Court rules after its landmark hearings on same-sex marriage, the issue seems certain to divide Americans and states for many years to come.
In oral arguments Tuesday and Wednesday on two cases involving gay couples’ rights, the justices left open multiple options for rulings that are expected in June. But they signaled there was no prospect of imposing a 50-state solution at this stage.
With nine states now allowing same-sex marriages and other states banning them via statutes or constitutional amendments, that means a longer spell with a patchwork marriage-rights map — and no early end to bruising state-by-state battles in the courts, in the legislatures and at the ballot box.
A decade ago, opponents of same-sex marriage were lobbying for a nationwide ban on gay nuptials. They now seem resigned to the reality of a divided nation in which the debate will continue to splinter families, church congregations and communities.
“It’s a lot more healthy than shutting off an intense debate at the very moment of its greatest intensity,” said John Eastman, chairman of the National Organization for Marriage and a law professor at Chapman University in Orange, Calif.
By contrast, supporters of same-sex marriage believe a nationwide victory is inevitable, though perhaps not imminent. Many of them see merit in continuing an incremental hearts-and-minds campaign, given that many opinion polls now show a majority of Americans supporting their cause.
“No matter what the Supreme Court decides, we are going to be in a stronger place in July than where we before,” said Evan Wolfson, president of Freedom to Marry.
“We have the momentum and we have the winning strategy,” Wolfson said. “We are going to win the freedom to marry, whether in June or in the next round, when we go back to the court with more states, more public support and perhaps new justices.”
Even if the Supreme Court shies away for now from any broad ruling in favor of marriage rights for gay couples, its decisions in June could produce major gains for gay-rights activists.
In one case, the justices could strike down a section of the 1996 Defense of Marriage Act that denies legally married same-sex couples a host of federal benefits available to straight married couples.
In the other, concerning California’s Proposition 8 ballot measure banning same-sex marriage, the Supreme Court could leave in place a lower court ruling striking down the ban. That would add the most populous state to the ranks of those already recognizing gay marriages: Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont and Washington, plus the District of Columbia.
Meanwhile, legislative efforts to legalize same-sex marriage are under way in Illinois, Minnesota, Rhode Island and Delaware, and lawsuits by gay couples seeking marriage rights have been filed in several other states. In Oregon, gay-rights activists hope to place a measure on next year’s ballot that would overturn a ban on gay marriage approved by voters in 2004. Legislators in Nevada are debating a bill that could lead to repeal of a similar ban there.
In advance of the Supreme Court hearings, gay-marriage backers mustered support from a broad array of interest groups, including labor and religious leaders, major corporations, even dozens of prominent Republicans who co-signed a brief filed with the high court. In the past few weeks, a parade of politicians have publicly endorsed same-sex marriage for the first time, including Republican Sen. Rob. Portman of Ohio and Democratic Sens. Kay Hagan of North Carolina, Claire McCaskill of Missouri, Jay Rockefeller of West Virginia, Jon Tester of Montana and Mark Warner of Virginia.
Former President Bill Clinton chimed in, too, writing that he now regretted his decision to sign the Defense of Marriage Act in 1996 and urging that it be struck down. President Barack Obama’s administration also asked that DOMA be declared unconstitutional and that Proposition 8 be struck down.
For gay-marriage opponents, it’s been an occasionally daunting period as they watch a steady stream of prominent politicians and institutions join the rival side.
The conservative American Family Association’s website, for example, listed some of the many well-known corporations that are now supporting same-sex marriage — including Google, Microsoft, Citigroup, Apple, Nike, Facebook and Starbucks. The website suggests that Americans opposed to gay marriage should boycott these companies, but the president of the Mississippi-based association, Tim Wildmon, acknowledges that would be impractical.
“There’s too many of them to effectively boycott,” he said in a telephone interview.
Wildmon expects the U.S. to remain divided over gay marriage for a long time and hopes neither Congress nor the courts try to interfere with the right of states to set their own policies.
“That’s just the way it’s going to be,” he said. “If you want to be a homosexual married couple, move to a state that accepts it.”
Such interstate moves could indeed occur, but with a potential cost for the states being forsaken, said gay rights lawyer Jon Davidson of Lambda Legal. “Maybe that’s what some states want, but the outpouring of business support for us indicates a lot of businesses don’t want that to happen,” he said. “It creates all sorts of problems.”
Among some conservatives, there’s been frustration at the frequent exhortation from gay-rights activists that the Supreme Court should be “on the right side of history” by endorsing same-sex marriage.
“It requires no courage, at this point in history, to side with gay marriage advocates,” Maggie Gallagher, a co-founder of the National Organization for Marriage, wrote in a commentary. “Respecting the rights of the millions of Americans who disagree, and respecting the boundaries of our Constitution, is staying on the right side of history.”
Conservative radio commentator Rush Limbaugh, on his show Wednesday, suggested the spread of same-sex marriage was indeed inevitable. He cited signs of increasing divisions among Republicans on the issue.
“Whether it happens now at the Supreme Court or somehow later, it is going to happen,” Limbaugh said. “It’s just the direction the culture is heading. … The opposition that you would suspect exists is in the process of crumbling on it.”
In any case, it’s unlikely that some of the most conservative states — those that adopted gay-marriage bans by overwhelming margins — will recognize same-sex marriages unless forced to by the courts.
A likely result is a steady stream of state-level lawsuits by gay couples, according to Boston-based lawyer Mary Bonauto, whose work with Gay and Lesbian Advocates and Defenders helped legalize same-sex marriage in several New England states.
“There are committed gay couples in every state who want to stand up and make that legal commitment to marriage,” Bonauto said. “They’re not going to go away. … They believe our national promise of equal protection under the law applies to them, too, not just to the East and West coasts and Iowa.”
Depending on how such lawsuits fare, Bonauto said, “I think this issue could be back at the Supreme Court in a number of years.”