In August of 2009 I wrote a blog post about my belief that same-sex marriage would be legalized throughout the U.S. in my lifetime. At the time, the practice was legal in only 5 states. Today it is legal in 37, and I am confident that the Supreme Court will rule this June that all barriers to same-sex marriage are unconstitutional. Our children and our children’s children will read about this summer in history class. For folks my age, it is unlikely there will be a more historic Supreme Court case in our lifetimes.
As a hobbyist Supreme Court junkie, I cannot express how excited I am about this. Let me take you on a short journey of what has happened over the last few years.
In 2013 two cases came before the Supreme Court. One concerned a ballot proposition in California. Voters chose to ban same-sex marriage, a judge threw the ban out, and a group had challenged the judge’s ruling. The second concerned the question of whether or not the federal government had to recognize same-sex marriages in states where they were legal. Interestingly, the lawyer arguing these cases in defense of same-sex marriage was Ted Olson, probably the most famous conservative lawyer in the country. He argued and won the historic Citizens United and Bush v. Gore cases. To argue in defense of same-sex marriage, he teamed up with the opposing lawyer from Bush v. Gore.
The oral arguments were fascinating to listen to. If this kind of thing even remotely interests you, I recommend listening to the audio from the California argument. The outcome was that in two 5–4 decisions, the justices ruled in favor of same-sex marriage, but in narrowly-defined ways. They ruled that the group challenging the judge’s decision in California were not harmed, and therefore did not have standing to bring their case. They also ruled that it was unconstitutional for the federal government to invalidate a marriage that a state ruled was legal. Thus they avoided making same-sex marriage legal anywhere it wasn’t before. They also avoided nullifying any existing marriages.
After the 2013 decisions, groups across the U.S. began to challenge same-sex marriage bans in their states, using the court’s recent decisions as precedent. These cases were eventually appealed to the Supreme Court, and in October, the Court shockingly refused to hear them. In one fell swoop, this effectively legalized same-sex marriage in 10 states. There are four reliably liberal justices, four reliably conservative justices, and one unreliably conservative justice on the Supreme Court. Why the conservative justices did not choose to hear these cases (it only takes four votes to hear a case) is mysterious. No one knows for sure, but it is possible one of the usually conservative justices crossed the aisle.
In November, the 6th Circuit Court of Appeals ruled against a federal right to same-sex marriage, contradicting rulings from the 4th, 7th, 9th, and 10th circuit courts. This is a conflict only the Supreme Court can resolve — and on January 16th of this year, they agreed to do so. Same-sex marriage cases from four states will be argued in a 2.5-hour marathon session in April, and a decision will be announced by the end of June. The justices will address whether the Constitution requires states to allow same-sex marriage, and whether same-sex marriages performed in one state must be recognized in another.
Considering that same-sex marriage is now legal in the majority of U.S. states, and that the court’s typical swing justice (Anthony Kennedy) has shown support for same-sex marriage in the past, it is already highly likely that the court will rule in June that barriers to same-sex marriage are unconstitutional. They have already held numerous times that marriage is a legal right, and they will be reluctant to deny that right where it has already been extended. This Monday however, a ruling in favor of a nationwide right to same-sex marriage became even more sure. The chief justice of the Supreme Court of Alabama had requested that the Supreme Court put a hold on a decision to legalize same-sex marriage in his state until the April cases have been decided. The Court refused to do so, with only two justices (Scalia and Thomas) dissenting.
The speed at which this has happened is breathtaking. In 2011, Pew Research found that for the first time, a majority of Americans thought same-sex marriage should be legal. Same-sex marriage has been legalized in 26 states–over half the country–in just the last two years. Today three out of four Americans live in a state where gay people can legally marry. It’s the tippingest tipping point that ever tipped.
I plan to be on the steps of the Supreme Court this summer when the decision is announced. It is rare to be given advance notice of precisely when history will be made, and I don’t plan to miss it. Instantly, a movement that has been building for decades will culminate, profoundly changing the lives of millions of couples across the U.S. I can sense the restive anticipation building in America’s capital city, arriving here from all the cities in the nation whose attention will be centered on nine men and women this June, poised to interpret our Constitution for a new generation.