Tearing Down the Walls Against Love, a Same-sex Marriage Update
Known for many years as the love that dares not speak its name, same-sex romantic love is, as we all well know now, increasingly speaking its name loudly and proudly, and increasingly with both popular and legal approval. While I am straight myself, this issue has become an important defining feature of my life, happening wholly within my lifetime (I was born several years before the Stonewall riots), and shifting my own position from homosexuality-is-a-sin-and-God-will-smite-thee to acceptance as I made friends with gay men and women, to support for civil unions, to support for same-sex marriage on a state-by-state basis (and, I hoped, within my own state), to support for nation-wide SSM.
And progress continues at an escalating pace. Following the Supreme Court’s rulings last spring in U.S. v. Windsor and Hollingsworth v. Perry we’ve had a flurry of activity on the same sex marriage front.
The Federal Government
U.S. Attorney General Eric Holder announced that the federal government will recognize all same-sex marriages and ensure equal protection for them in all federal government programs. This includes couples who got married in a state that allows SSM but who currently reside in a state that doesn’t.
The 9th Circuit Court of Appeals
The 9th Circuit Court of Appeals, ruling on the issue of striking a juror from the pool based on his homosexuality, concluded that the Supreme Court’s rulings required using “heightened scrutiny” to evaluate discriminatory actions against homosexuals, rather than the lower standard of the “rational basis” test.
In response to the 9th Circuit’s ruling, Nevada Governor Brian Sandoval sought leave to withdraw the State’s brief defending its ban on same-sex marriage in the case of Sevcik v. Sandoval. The 9th Circuit granted his request, and granted an expedited hearing, which–with heightened scrutiny and no legal defense of the law–should be a pro forma striking down of the ban.
A federal judge struck down Utah’s ban on same-sex marriage. The State appealed and asked for a stay of the order and Supreme Court Justice Sonia Sotomayor has granted the stay, meaning no new same-sex marriages until the 10th Circuit hears the appeal. However approximately 1300 such marriages had already been performed, and while Utah’s Governor, Gary Herbert, announced that the State would not recognize them, Attorney General Holder specifically stated that the federal government will.
A federal judge struck down part of Kentucky’s ban on same-sex marriage. Although the state does not have to grant marriage certificates to same-sex couples, it must now recognize same-sex marriages performed in other states. The case concerned only the right of already-married couples to receive recognition, and the judge ruled narrowly on that issue. But he also hinted that if would-be-married couples filed a challenge, the rest of the law probably could not stand.
A federal judge has ruled against Oklahoma’s ban on same-sex marriage. The judge put the ruling on hold until an appeal, but the language of his ruling is important. Contra the 9th Circuit, he appears to have stuck to the rational basis standard, but still found the law failed to clear even that low bar, saying
“the Court’s rationality review reveals Part A an arbitrary, irrational exclusion of just one class of Oklahoma citizens from a government benefit.
In the most recent case to date, Virginia’s ban on same-sex marriage was struck down by a federal judge. The order was stayed pending appeal. Notably, though, the State’s Attorney General chose not to defend the law–reversing his prior position, as a state senator, in support of it–claiming it violated equal protection. Both the judge in her ruling and the Attorney General in interviews compared the ban on same-sex marriage to Virginia’s prior ban on inter-racial marriage, which the Supreme Court struck down in 1967 in the most aptly titled ever Supreme Court case of Loving v. Virginia.
Meanwhile, my beloved home state of Indiana, fumbled its attempts to move forward with a state constitutional ban on same-sex marriage. Amendments have to be approved by successive legislatures than go to the public for a vote. The original proposal, passed in the prior legislature, included a ban on civil unions. That language was stripped out this time by the House, and the Senate declined to restore it, so with the substance of the bill changed, this counts as first passage of a new bill, not second passage of the original bill. So the proposal cannot go to the voters unless it is passed again by the new legislature after the next elections. So it will be at least two years before Indiana could amend its constitution to ban same-sex marriage, by which time I would expect the Supreme Court will have ruled, or be about to rule, on the issue. Two polls of Indiana voters varied widely, with one showing only 34% approved amending the Constitution to ban SSM, and the other showing 53% support. But noticeably, even in this conservative state, at least 40% of the voters oppose banning same-sex marriage.
On a personal note, this issue matters to me not simply as a matter of abstract justice. At my own wedding the reality of lack of same-sex marriage rights was brought home to me when our friend Bill complimented us by saying he wanted his own wedding to be just like ours. But of course he couldn’t have that, because even if he had mimicked every other detail perfectly, the state wouldn’t have allowed him to have that ceremony with someone he truly loved, as my wife and I could. And now, for the first time I’ve ever known of, I have a close family member who is gay.
In the end, same-sex marriage isn’t solely about same-sex romantic love, but also about the love we all feel for our friends and family, the kind of love that makes you wish with all your heart for their health and happiness.