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Now legal in 36 states, Supreme Court to take another look at same-sex marriage

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Justice Antonin Scalia forecast what would happen when he dissented from the court’s decision in the Windsor case in June 2013.

Justice Anthony Kennedy said in his majority opinion that the decision was not intended to resolve the question of whether states could prevent same-sex couples from marrying. But Scalia predicted that courts soon would apply Kennedy’s words to strike down state bans on gay marriage.

“How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status,” Scalia said.

It did not take long to for him to be proven right. The first ruling after the Windsor decision came six months later in Utah, followed by a deluge in every region of the country.

Opponents of same-sex marriage have fought a mostly losing battle to get judges to defer to voters and elected lawmakers who enacted laws and constitutional amendments in many states defining marriage as between a man and a woman.

John Bursch, who represented Utah in its unsuccessful bid to get the high court to hear that state’s appeal, said the proponents of same-sex marriage have an easy argument to make to the justices.

“Thirty-six states have this now, so you don’t have to wait anymore,” said Bursch, who also served as Michigan’s solicitor general. “The simple response to that is, ‘Hey, that was the courts.'”

Kaplan noted the irony of federal courts leading the way in bringing same-sex marriage to large parts of the country. “For so long we were so scared of going into federal court,” where state restrictions were usually upheld, she said.

The court’s earlier major discrimination cases suggest that the justices may now be more comfortable setting a nationwide rule for gay marriage.

In 2003, 13 states still had laws against sodomy when the court ruled that states have no right to intrude on the private, personal conduct of people, regardless of sexual orientation. Interracial marriage still was illegal in 16 states in 1967, before the high court outlawed race-based state marriage bans. And in 1954, when the court issued its landmark decision in Brown v. Board of Education, 17 states had formally segregated school systems.

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