Saturday, January 03, 2015

187.2 - Good News: same-sex marriage gains in 2014

Good News: same-sex marriage gains in 2014

Our other bit of good news is a quick overview of the gains made in 2014 in another area that has seen much discussion here: the right of same-sex marriage.

You know - I expect you can't not know - that the right to marry the person you love without regard to gender made major strides in 2014. Marriage equality is now endorsed or at minimum accepted by a clear majority of the public, so much so that in many places the idea of opposing same-sex marriage is beginning to look as anachronistic as opposition to interracial marriage is.

Even President Hopey-Changey has again "evolved" on the issue, having said in October that he thinks that the Equal Protection Clause the 14th Amendment "does guarantee same-sex marriage in all 50 states."

But you may not realize just how much things have advanced.

So here's a way to see it in two maps prepared by the group Freedom to Marry. The first map shows how the right to marriage justice stood at the end of 2013, one year ago. The states in red allowed for same-sex marriage, the ones in dark green had civil unions or domestic partnerships, and bans on same-sex marriage stood in all the other states, although they were under legal challenges in Ohio and Utah.

The second map show how things stood at the end of 2014. Same-sex couples in 35 states now have the freedom to marry and there are lower-court rulings in favor of marriage justice in six more. Those six are now under appeal so they are, obviously, not final. In Louisiana there are conflicting rulings, one pro-justice and one anti-justice, and no case has gotten to the point of a court ruling in five states. In only four states, marked in the appropriately ugly yellow-green, has a ban on marriage equality been upheld by the courts.

Those four states make up the 6th federal circuit for the Courts of Appeal, that circuit court being the outlier among federal appellate courts which have made rulings on the matter.

Because of that division in federal circuit court decisions on same-sex marriage rights, there is a good chance that the Supreme Court will take up the matter in its 2015 session. We should know by the end of January.

Something that's significant is that the number of states now allowing same-sex marriage has reached a historic threshold, a tipping point, a level where the Supreme Court feels comfortable overturning the practices of the remaining states. Walter Dellinger, an acting solicitor general in the Clinton administration, said that "When only a third of the states still retain a practice, the court seems ready to act."

For example, when the court struck down bans on interracial marriage in 1967 in Loving v. Virginia, such unions were still illegal in 16 states.

When the court struck down anti-sodomy laws in 2003 in Lawrence v. Texas, 13 states still had such statutes on the books.

Whenever the Supreme Court considers same-sex marriage, it will at that point be banned in no more than 15 states and quite possibly fewer.

Now, it is of course not quite that simple; it never is. In the Loving case, it was mostly the result of the actions of state legislatures, not courts, that reduced the number of states with bans to 16 and of course the final desperate argument of those who want to maintain marriage bigotry - among who I number the 2-1 majority of the 6th circuit panel that upheld bans on same-sex marriage there - the final desperate argument is to say "this should be left to the democratic process" and to point to the facts surrounding Loving as proof.

The problem is, no matter how those folks try to glorify the democratic process, no matter how they try to deify political and social consensus, the fact is that what these folks are ultimately saying is that human rights are dependent upon the approval of the majority and the continued existence of those rights is dependent on that continuing approval. What they don't understand - or more likely refuse to understand because of their own biases - is that rights, especially written guarantees of rights such as are found in the Constitution, are not there to reflect the majority, they are there to protect the minority, to protect the minority because the majority, by virtue of being the majority, does not need that protection.

Enough people have realized that or at least sense it, sense that rights are to protect the minority, and so sense its application to the issue at hand, enough have realized it that even in the face of this Supreme Court, the momentum still is on the side of advocates for marriage equality.

I've said it before, I'll say it again: On this, if on nothing else, we are winning. Justice will come.

And that, surely, is good news.

Sources cited in links:

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