Equality: Are We Finally Getting There?

By RayneVanDunem (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons

By Shaan Fye, Editor-in-chief

I preface this article by saying I am an ardent supporter of the LGBTQ community’s right to marry. For me, this topic is not a debate. What I do want to discuss is the history of the country-wide shift on the acceptability of gay marriage as well as the process to legalizing it.

The Kickoff

Ironically, the event that incited the coming sea-change on the perception of same-sex marriage was the passage of DOMA (The Defense of Marriage Act) in 1996. The Baehr v. Miike case that occurred the in ’90s in Hawaii worried many legislators; it gave ground to proponents of same-sex marriage through a state Supreme Court ruling which didn’t explicitly rule in favor of continued discrimination against same-sex marriage. This “travesty” fueled the supermajority veto-proof bill explicitly defining marriage as only “a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” Additionally, worried voters voted an amendment into law in Hawaii banning same-sex marriages in 1998 to rule out the possibility of the courts granting same-sex marriage.

At this point in time, only 25% of Americans supported the legalization of gay marriage. The prevailing opinion was that marriage should be explicitly defined as a union between a man and a woman. Even Bill Clinton, a supporter of LGBTQ rights, refused to veto the (un-vetoable) bill as a matter of the political landscape. According to the New York Times,  “Mr. Clinton considered it a gay-baiting measure, but was unwilling to risk re-election by vetoing it.”

Shifting Tides

After being thrust into the public, support for same-sex marriage began to gather political traction. In 2004, Massachusetts became the first state in the country to allow same-sex marriage. In Goodridge v. Department of Public Health, the Massachusetts Supreme Judicial Court ruled that the state may not deny the protections, benefits and obligations conferred by civil marriage to two individuals of the same sex who wish to marry. According to the ruling, “the Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens.”

This event set off a conflagration of criticism. President Bush responded in his 2004 State of the Union address, saying, “Activist judges, however, have begun redefining marriage by court order, without regard for the will of the people and their elected representatives. On an issue of such great consequence, the people’s voice must be heard. If judges insist on forcing their arbitrary will upon the people, the only alternative left to the people would be the constitutional process. Our Nation must defend the sanctity of marriage.”

The Massachusetts case set off a string of favorable court decisions in support of marriage equality. At the same time, 17 states by 2005 countered the court decisions with amendments specifically banning same-sex marriage. And in Louisiana, the state’s Supreme Court overturned a district court’s ruling that the ban was unconstitutional. The controversy elevated the issue, drawing more and more awareness.

Proposition 8

In 2008, the Supreme Court of California ruled an earlier vote banning same-sex marriage (Proposition 22) unconstitutional, granting gay couples the ability to marry beginning in June. After the earlier Massachusetts decision, this ruling was the second state Supreme Court decision negating the ban on same-sex marriage. Unfortunately, the proponents of equal marriage had a short-lived victory.

Proposition 8 was immediately drawn up by opponents of same-sex marriage to counter the court’s ruling. The purpose of Proposition 8 was to circumvent the court’s ruling by getting a constitutional amendment explicitly defining marriage as between a man and woman. As the November vote neared, the competition to decide the proposition’s fate increased in intensity. The contest drew national attention to California and the fate of same-sex marriage.

Eventually, Proposition 8 passed in a 52% to 48% vote. The support of numerous religious institutions, including the LDS and Catholic Churches, helped guarantee a high turnout amongst opponents of gay marriage. The ban on same-sex marriages began again, a departure from the brief interlude in the summer and fall of 2008.

The proposition, ruled unconstitutional in a state court decision, eventually fell in 2013 after a 5-4 U.S. Supreme Court decision. Proposition 8 ended up preventing same-sex marriages for 5 years.

Where We Are Now

In the midst of the Proposition 8 saga, section 3 of DOMA was found unconstitutional, numerous state courts overturned bans on same-sex marriages, and public support on same-sex marriage dramatically increased. As of January 24, 2015, 37 states and Washington D.C. allow same-sex marriage. Now, 55% of Americans and almost 80% of young adults support gay marriage. In less than 10 years, the fight to bring equality to all couples seems to be almost secured.

On a national level, the Supreme Court has never directly ruled on the legality of gay marriage. While it did find Section 3 of DOMA unconstitutional in 2013, it never explicitly outlined whether states could or couldn’t perform same-sex marriages. Nevertheless, the pending appeals on same-sex marriage bans were found unconstitutional in district courts following the Supreme Court’s ruling.

The 6th District Court broke this trend, finding last November that statewide bans on gay marriage were in fact permissible and constitutional. Naturally, the opponents of this ruling appealed to the Supreme Court, and a request to decide this case was granted January 16, 2015.

The overwhelming consensus is that SCOTUS will rule in favor of gay marriage, officially ending the legal debate on gay marriage. While several conservative leaders have voiced their opposition to the pending decision, it will be extremely hard to challenge the Supreme Court’s ruling coupled with public support.

The entire same-sex marriage evolution over the past 20 years illustrates a trait America is often accused of losing, dynamism. Within one generation, the U.S. electorate managed to reverse their opinion on who should be allowed to marry, illustrating the vitality of a healthy, engaged population. Supporters of numerous issues, such as the legalization of marijuana, should look towards the success of same-sex marriage legality and the process that accompanied the change. The change in opinion is not only a victory for gay marriage proponents, but also anyone with the desire to see America remain full of vitality and able to encourage and withstand change.

Agree? Disagree? Contact Shaan Fye in the comments below or at shaanfye@atlasbusinessjournal.org