Photo Credit: sushiesque on Flickr
Public support for legalizing same-sex marriage has grown considerably. Gallup, for example, has conducted polling on public support for same-sex marriage since 1996. In 1996, 68 percent of Americans polled believed that same-sex marriage “should not be valid” whereas only 27 percent believed that it “should be valid.” But in 2012 support for same-sex marriage had increased by over 20 points, with 50 percent of Americans believing it “should be valid” and 48 percent believing it “should not be valid.” Polling by CNN and ABC News/Washington Post show a similar increase in support.
Despite the shift in public opinion, however, same-sex marriage has never been legalized via popular vote. At the ballot box, same-sex marriage has a dismal record: 0 for 32. Moreover, thirty-one (31) states have adopted state constitutional amendments banning legal recognition of same-sex marriages. Where same-sex marriage has been legalized, it has been exclusively through court rulings and legislative action: New York (2011), Massachusetts (2004), Connecticut (2008), Iowa (2009), Vermont (2009), and New Hampshire (2010) (the District of Columbia also permits same-sex marriages).
In recent years, several state supreme courts have addressed whether laws that restrict marriage to opposite-sex couples violate the equal protection clause under their state constitutions. However, the courts have differed wildly on the level of scrutiny applied. For example, in In re Marriage Cases, 43 Cal. 4th 757 (2008), the California Supreme Court held that discrimination based on sexual orientation triggers strict scrutiny (most restrictive; i.e., the law must be justified by a compelling governmental interest; it must be narrowly tailored; and it must be the least restrictive means for achieving that interest). Other courts, such as the Connecticut Supreme Court in Kerrigan v. Commissioner of Public Health, 289 Conn. 135 (2008), have held that classifications based on sexual orientation should receive intermediate scrutiny (i.e., the law must further an important governmental interest in a way that is substantially related to that interest). And still other courts, such as the New York Supreme Court in Hernandez v. Robles, 7 N.Y.3d 338 (2006), have applied rational-basis review (least restrictive; i.e., the law must be rationally related to a legitimate governmental interest).
However, even when state courts apply the least strict standard of review (rational basis), they have reached differing conclusions regarding whether the state’s proffered justification for restricting marriage to opposite-sex couples is sufficient.
For example, in Hernandez v. Robles, the New York court held that (1) the “Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships,” and (2) the “Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father.” In contrast, in Goodridge v. Department of Public Health, 440 Mass. 309 (2003), the Massachusetts Supreme Court rejected the states arguments that (1) the prohibition on same-sex marriage reflected a permissible judgment that marriage was fundamentally concerned with procreation, (2) restricting marriage to opposite-sex couples was designed to “ensur[e] the optimal setting for child rearing,” and (3) limiting marriage furthered a legitimate state interest in conserving scarce financial resources based on the assumption that same-sex couples “are more financially independent than married couples and thus less needy of public . . . or private marital benefits.”
The issue of same-sex marriage is divisive, and arguments over its legality often devolve into impassioned emotional appeals. On the one hand, proponents of same-sex marriage argue that prohibitions on same-sex marriages is discrimination, and that “All families deserve equal protection under the law.” On the other hand, opponents of same-sex marriage seek to preserve the status quo and what they view as “traditional marriage,” believing that “loving, low-conflict, two biological parent unions are the form of family relationship that ought to be promoted by our government.” But the rationality of restricting marriage to opposite-sex couples may be amenable to empirical debate.
Consider the following, from Pamela Karlan’s Same-Sex Marriage as a Moving Story:
Suppose . . . that there were reliable evidence that children raised by same-sex couples were, by their own account, less happy as adults than their counterparts raised by opposite-sex couples; suppose further that there were evidence that recognizing same-sex marriages increased the number of gay couples who choose to have children or otherwise increased the number of parents who enter into same-sex relationships. . . . [Would supporters of same-sex marriage] respond, as one of the Justices did in Loving [v. Virginia], that we “don’t know what is cause, and what is effect”? It may well be that any unhappiness or difference in outcomes is a product of continuing societal discrimination against gay men and lesbians . . . .
[S]uppose it were shown that children raised by same-sex parents reported the same levels of subjective happiness and performed as well along whatever objective dimensions we might care about as their counterparts raised by opposite-sex parents. . . . [Faced] with the fact that large numbers of children already live in households headed by same-sex couples, would [opponents of same-sex marriage] respond to claims that the lives of those children would be improved by allowing their parents to marry by arguing that changing the definition of marriage poses dangers to the welfare of other children because their parents’ commitment to the institution may be undermined by laws that reject “the moral and religious considerations ordinary people rely upon to strengthen their marriages”?
Recently, the Court of Appeals for the Second Circuit, in Windsor v. United States, struck down the Defense of Marriage Act (DOMA) and held that gay Americans are a class of people who deserve the same kinds of constitutional protections as many other victims of discrimination. Windsor, along with an earlier decision by the First Circuit in Boston invalidating DOMA, and one from the Ninth Circuit overturning California’s ban on same-sex marriage, makes it likely that the Supreme Court will address, in this term, whether or not the Constitution guarantees every person the right to marry the person of his or her choice. Indeed, in September, Justice Ruth Bader Ginsburg, while speaking at the University of Colorado in Boulder, expressed her belief the Court would adjudicate DOMA within the next year.
A ruling by the Supreme Court on the constitutionality of DOMA, however, would have an effect only on the states that currently permit same-sex marriages. It would not have an effect on the thirty-one states which prohibit same-sex marriages in their state constitutions, and it would not amount to the federal endorsement of or legalization of same-sex marriages in general. Moreover, any decision by the Court would be announced many months down the road.
On November 6, however, while many Americans will be casting their ballot for President, the voters in Washington, Maryland, and Maine will also have a chance to end the losing streak for same-sex marriage proponents. Interestingly, in 1973 Maryland became the first state to define marriage as a union between a man and a woman. Now, nearly 40 years later, its voters could be the first to endorse it, potentially granting millions of Americans the right to marry the person they love, regardless of their sex.