Gay Marriage | Gay Rights | Law - Gay, LGBT

LA Times Predicts Coming Marriage Equality Victories Will Occur In Courts

The LA Times provides a glimpse into the next round of marriage equality battles.

MarriageIts takeaway on the situation until now: although anti-gay conservatives in the late 90s whined about "activist judges" forcing gay marriage onto states whose citizens didn't necessarily want it, that narrative has largely changed — especially as 11 of 17 states with legalized same-sex marriage got it through elected legislatures and ballot measures. The LA Times says these non-court victories "are robust reflections of public acceptance" and "less susceptible to resentment and challenge."

However, the paper predicts that the next round of marriage battles will likely return to the courts. Their proof? The Civil Rights Movement:

…in truth, the road to civil rights historically has involved a mix of approaches — popular opinion, lawmaking and court ruling — each affecting the others. The repeal of state laws against interracial marriage, for instance, followed this path, with a combination of judicial rulings and voluntary state repeals in the late 1940s and beyond until, in 1964, the U.S. Supreme Court overturned such laws in the 16 states that still had them. Some of the state decisions to repeal discriminatory marriage laws took place when a majority of Americans still favored such restrictions. But increased recognition of these rights by both legislatures and courts led to increased public support by the early 1960s.

It has been the same with gay marriage so far. The first state to recognize it — Massachusetts — was required to do so by a court ruling in November 2003, at a time when polls showed it would not have been approved by popular vote. Ten years later, a new poll found that Massachusetts voters had now changed their minds. Most of them believed the law had had no negative effects on the state, and 60% favored recognition of same-sex marriage...

Now, the fight for same-sex marriage is entering a new phase. The low-hanging fruit — states without strong laws banning gay marriage and with more progressive populations — is pretty much picked and the new battles will be in stiffly resistant territory. In 32 states, same-sex marriage is banned by a combination of laws and constitutional amendments, which means change is less likely to come via popular or legislative votes. Courts will play a bigger role.

An interesting development that piece didn't hit on was the role of pro-LGBT county clerks who issue same-sex marriage licenses in states with marriage bans. Clerks in Michigan, New Mexico and Pennsylvania have all done this — could this be a new tactic forcing state Supreme Courts to rule on the constitutionality of state marriage amendments more quickly than in the past?

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  1. It should be noted that New Mexico did not have a marriage ban on the books. It had no law on the matter at all.

    Posted by: Joey | Dec 31, 2013 3:07:41 PM

  2. Courts can be fickle, and our government is hopelessly corrupt, so I do not trust them.

    We should be winning hearts and minds and strategizing and educating people.

    The model Equality Maine used to win there worked. Volunteers went door to door and talked to people, one person at a time. It took years and serious dedication. And it worked.

    And every month that passes there the dire warnings of the horrible things that would happen made by our enemies were proven to be the lies we said they were.

    That's how lasting change that isn't subject to whim is created. Not by getting suckered into a popularity contest, like us vs. Phil Robertson's messed up pseudo-religious beliefs.

    We need to stop letting the detached and mostly clueless urban activists call the shots, they were WRONG about Maine, and they are WRONG about how to change the remaining states.

    Politicians are loving the SSM issue because they can avoid dealing with more serious issues that we should ALL be extremely upset about. We're being used by both parties and by our own lame gay media, and it's time to wake the heck up and smell the catfood !

    Posted by: Buckie | Dec 31, 2013 3:20:29 PM

  3. Loving vs Virginia struck down the remaining bans on interracial marriage in 1967, not 1964.

    Posted by: BZ | Dec 31, 2013 3:27:50 PM

  4. "could [defiance by county clerks] be a new tactic forcing state Supreme Courts to rule on the constitutionality of state marriage amendments...?"

    No, if by amendments you mean constitutional amendments. State constitutional amendments are, by definition, constitutional in state courts. State courts cannot rule them unconstitutional. State constitutional marriage bans must be challenged in federal courts as violating the U.S. Constitution.

    Posted by: JJ | Dec 31, 2013 3:56:54 PM

  5. So the will of the people is irrelevant. Fantastic. Liberals really will stop at nothing in order to sustain and fulfill their agenda.

    Posted by: Rick | Dec 31, 2013 4:10:05 PM

  6. Not to say that county clerks defying state bans isn't a great development. When they defy state bans, it shifts the legal and political dynamics of the ensuing litigation. Clerks don't find themselves in a position of having to defend a law they oppose. They can devote public resources toward advancing equality instead of impeding it. It forces state officials to act, which can shape political futures. Etc.

    Posted by: JJ | Dec 31, 2013 4:25:39 PM

  7. @Rick, the will of the people is subject to Constitutional limits, as always. As James Bovard said, "Democracy must be something more than two wolves and a sheep voting on what to have for dinner." If you want to take the childish view that the rules are unfair if you don't get your way, then expect childish disappointment.

    Posted by: JJ | Dec 31, 2013 4:37:57 PM

  8. "We should be winning hearts and minds and strategizing and educating people."

    @Buckie: This work has been going on for at least two decades, not only in Maine but in many many other states. Not all marriage-equality work has been perfect (around Prop 8, for instance) but almost every state has people on the ground doing all the things you suggest. That's why we've come as far as we have. Civil rights gains are, as the article suggests, always a combination of winning public support, lobbying legislatures, and making constitutional arguments before the courts.

    Posted by: Ernie | Dec 31, 2013 5:07:05 PM

  9. Well there is a limit to "educating the public". You are hitting a brick wall when you try that on those "redneck wingnuts" and their ducks. It is a little presumptuous if you said you can educate that venerable institution, the Church.

    Posted by: simon | Dec 31, 2013 5:17:20 PM

  10. marriage equality needs to happen now, across the country!

    Posted by: Junior | Jan 1, 2014 1:40:19 AM

  11. Rick said this "So the will of the people is irrelevant. Fantastic. Liberals really will stop at nothing in order to sustain and fulfill their agenda"

    You sound like my Governor Prick Perry. He said gays are just the flavor of the month"
    You know what told Gov Prick? I told him he needed to "acquire" a taste.
    I give you the same advice. Assimilate or Dissipate...I Do Not Care Which

    Posted by: Larry | Jan 1, 2014 12:48:56 PM

  12. Buckie:
    You can't educate the Church because they claim they already know everything in this World and the next.

    Posted by: simon | Jan 1, 2014 12:51:22 PM

  13. @Buckie, You are 100% correct, both parties are using our Community in classic political fashion. Sadly. The point of "No Return' on the matter of Equality happened long ago and for the most part, should be Done, as far as discriminatory legislation. The longer our being a 'social' - 'wedge' etc issue, the longer attention is not on matters of great importance to all. Easy to accomplish given a large % of people never move beyond 'headline' misleading news, become passionate about things they know nothing about - etc.

    Stopping actively engaged urban activists? Hell no. There have always been 'factions' of disagreement on moving forward, creating change, making things happen. Always will be. Nothing wrong with it, ultimately works itself out, results continue to happen. Everyone should keep doing what they are doing, staying involved. Participating. If others disagree with the approach, they're free to try a different approach. Every approach is how we got where we are today, waiting for the 'right' approach being laid out in front as a path forward .... would still have us waiting. The past 50 years include millions of individuals willing to put themselves at Risk - as is still the case for many today.

    Hats off to everyone willing to step forward in action. Some actions have been superb, some less so, all collectively part of the process.

    Posted by: RexT | Jan 1, 2014 1:10:33 PM

  14. You can't say "our government is hopelessly corrupt" when discussing one federal government (with complex court system) and 50 state governments, each with a different state constitution and history. So it's 51 complex governments. And they may be a lot of things, but they aren't particularly corrupt. For actually corrupt, check out Russia or many third world, particularly African, countries.

    Posted by: emjayay | Jan 1, 2014 7:26:21 PM

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