Marriage equality supporters have been anticipating the opportunity in which the United States Supreme Court could decide whether all 50 states must allow same-sex couples to marry. Last week, the justices decided to hear cases from four states involving some 15 same-sex couples. The landscape on marriage equality has changed dramatically since 2013, when only nine states permitted it and California's Proposition 8 was tossed out on a technicality by the high court. It was the court's other decision that term, U.S. v. Windsor, however, that provided the precedent with which many lower courts have ruled that such unions are a fundamental right. Since then, the number of states allowing same-sex marriage has grown to 36, plus the District of Columbia.
But not all the lower courts agreed. A decision last November in the 6th U.S. Circuit Court of Appeals, which upheld state marriage bans in Kentucky, Michigan, Ohio, and Tennessee, was the trigger for the Supreme Court – it often takes cases where there is a split in the federal circuits. The plaintiff couples in those states petitioned the high court, seeking review. The justices will hear arguments in April; a decision is expected in June, probably right around the same time many cities, including San Francisco, will be celebrating LGBT Pride.
Today, 70 percent of Americans live in a state where same-sex marriage is legal. The shift toward support has been rapid, by most comparisons, and same-sex marriage has emerged as a leading civil rights issue. Sure, there are still pockets of opposition, but anti-gay marriage groups like the National Organization for Marriage find themselves increasingly on the outside looking in: they neither attract major financial donors nor widespread political support. It says something about the evolution among politicians when Republican Jeb Bush, who is looking at a presidential run in 2016, has been forced to clarify his stance on marriage equality even before becoming an official candidate. Granted, as we noted a couple weeks ago, his position is ridiculous, cloaked in the "religious liberty" canard to placate possible donors and supporters, but nonetheless he had to carve out a position. We suspect that by the time the presidential race really starts shaping up, leading candidates will have to further define their position on marriage. Two years ago, just before the Supreme Court heard oral arguments in the Windsor and Prop 8 cases, Democratic politicians at all levels suddenly publicly proclaimed support for same-sex marriage, and even a couple GOPers came on board.
Given that presidential hopefuls are already jockeying for donors and supporters, it's also likely that should the high court decide in favor of same-sex marriage, candidates will welcome the political cover the ruling provides. Some of them, like New Jersey Governor Chris Christie, said the issue was "settled" after a state court ruled that his state could not deny same-sex couples the right to marry.
There will be some, notably evangelicals, who will continue to rail against same-sex marriage, and there will always be a corner of the Republican Party for them. In fact, the party's platform is explicitly against same-sex marriage and that might not change next year, but keeping that discriminatory language in the document will hurt the party as it seeks to appeal to minority groups, many of which are more comfortable with marriage equality now that it is available in so many states.
We don't see marriage equality as akin to abortion, which is still a hot button political issue 42 years later. Rather, we predict the country will largely move on to acceptance, much like it did after the high court ruled that interracial marriages were legal. But don't misunderstand us, there will always be a portion of the population that doesn't like gays and there will always be some who don't support our equal marriage rights. They are entitled to their opinion, but they can't draft laws abridging our rights.
That's why these stealth legislative battles over religious liberty are so dangerous, and that's where our future efforts need to be directed.