Supreme Court Justice Antonin Scalia has famously said that the country is waiting for the other shoe to drop on gay marriage. By that, he meant that the Supreme Court’s decision to overturn the traditional definition of marriage in DOMA tacitly invites a challenge to all state laws banning gay marriage. He was right about that as the challenges are already coming. Just last week, the Associated Press reported that
Judges and lawyers representing same-sex couples are already using Kennedy’s language and reasoning in other cases about the right to marry.
It’s a predictable next step in a long-term, incremental legal strategy that is being used at both the state and federal levels, and in state legislatures and executive mansions as well as the courts, to build public and official acceptance of gay marriage. Much the same approach was used decades ago by civil rights lawyers fighting state-sanctioned discrimination; one decision becomes a steppingstone to the next.
The AP goes on to report that challenges are already cropping up in New Jersey, Nevada, Hawaii, and Michigan. In a similar case, The Richmond Times-Dispatch reports that the ACLU will be challenging Virginia’s 2006 ban on gay marriage in that state as well.
Likewise, The Morning Call reports today on an ACLU lawsuit against the state of Pennsylvania. Many observers believe that this Pennsylvania case has great promise to force states to accept gay marriage, even if those states have previously passed laws against it. In other words, if this case makes it to the Supreme Court, it would be very difficult for the high Court to do anything but make legal gay marriage the law of the land.
The face of the Pennsylvania lawsuit involves two gay men wishing to avoid the inheritance tax. These men say that they “fell in love at a Christian spiritual retreat” over twenty-five years ago and have been together ever since. In May, they married legally in Maine, and now they want Pennsylvania (which bans gay marriage) to recognize their union (see video below).
We are not going to be able to keep up with all the lawsuits being filed against states that ban gay marriage. They’re already piling up, and I predict that there will be many more to come. At this point, at least one thing seems unavoidable. One or more of these will make it to the Supreme Court. It’s only a matter of time.
The Supreme Court’s DOMA decision brought us to the precipice of legal gay marriage in all fifty states. One of these challengers will likely take us the rest of the way there.
Denny: I agree that it is only a matter of time before challenges to state laws and constitutions will reach the SCOTUS. What is interesting is that the DOMA majority opinion in rejecting a federal definition of marriage based its reasoning in part on this being a state issue. It will be interesting to see they approach taken when that state right is taken away from them.
Given the Full Faith & Credit Clause of the Constitution there’s no constitutional way for PA to avoid recognizing a marriage in ME; no more than they could refuse to recognize an interracial marriage in CA if they so wanted. DOMA was always expressly unconstitutional in that regard.
It will prolly be a few years yet, tho, before SCOTUS forces TX, say, to itself permit in state same sex marriages. Kennedy & Ginsburg seem intent on slow walking this one, at least until there’s a sizable consensus on the matter.
I think the church will have to reconcile themselves to the fact that there are, now, 2 types of marriages. Civil marriage–recognized by the state–and religious marriage–recognized by their faith. They are 2 distinct things. While the church can’t change its doctrine, its always a good thing when a democracy opens up institutions to those denied entry. What makes this a great country is that we have a progressive ideal & history of doing just that.