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What The Hell Is Going On With Gay Marriage?

Ariana Aboulafia |
November 12, 2014 | 8:19 p.m. PST


The gay marriage movement has one inevitable ending (Gay Marriage USA, Facebook)
The gay marriage movement has one inevitable ending (Gay Marriage USA, Facebook)
The movement for marriage equality has been sweeping the nation, recently with astonishing speed. In 2012, the landmark case United States v. Windsor struck down Section 3 of the Defense of Marriage Act (DOMA), when the Supreme Court ruled it unconstitutional under the Fifth Amendment. For a while, it seemed as if every day the media was reporting on another state legalizing same-sex marriage, or at least taking steps in that direction.

However, at the same time that marriage equality seems to be the imminent future of our nation, it also becomes clearer each day that significant opposition to the movement still exists. This opposition was brought to light last week, when the Sixth Circuit Court of Appeals upheld gay marriage bans in Kentucky, Michigan, Ohio and Tennessee, becoming the first federal circuit court to uphold a same-sex marriage ban since the Windsor decision.

With all of this back-and-forth, one question is looming over the heads of Americans – just what in the hell is going on with gay marriage?

The actual answer to this question requires a bit of history, starting with the passage of DOMA in 1996. Section 3 of the legislation defined “marriage” for federal purposes as a union between one man and one woman, ensuring that gay and lesbian couples could not be considered “married” federally, and thus would not receive federal benefits that heterosexual couples receive, even if they were considered “married” in their state of residence. DOMA also ensured, in Section 2, that individual states do not have to recognize the marriage status of same-sex spouses that are married in other states.

Although the media has focused most of their attention on Section 3 of DOMA, Section 2 is just as important, since it has contributed to the overall confusion surrounding gay marriage. Furthermore, Section 2 (which is still valid in the United States) has led to situations where, for example, a same-sex couple may be legally married in California, but live in Texas and not be allowed to get a divorce in that state since, according to the state of Texas, the couple was never truly “married” to begin with. United States v. Windsor only challenged Section 3 of DOMA and, therefore, the Court’s decision in that case only reversed this particular section, and not the entire law as many people believe. 

SEE ALSO: Same-Sex Marriage Will Be Recognized In 6 More States

Regardless of the limits of the Windsor decision, it is an extremely pertinent case to this discussion for two reasons. First, because it allowed same-sex couples that were married legally on a state level to receive federal benefits. Second, it began a chain reaction of states legalizing same-sex marriage. From May 17, 2004, when Massachusetts became the first state in the U.S. to legalize same-sex marriage, to the Windsor decision on June 26, 2013, only 12 states in the U.S. legalized same-sex marriage (that’s including Massachusetts). Currently, there are 33 states that allow same-sex marriage, plus the District of Columbia. Consider that for a second: we have more than doubled the number of states where same-sex marriage is legal in just over one year, and if this momentum continues, it seems that same-sex marriage will soon be legalized in every single state. But will it? 

The same-sex marriage momentum occurring in the United States now is no coincidence. Part of it is a consequence of our judicial system: although each state has made their decisions based on different cases and different specific laws, courts are more likely to rule in favor of same-sex marriage if courts in other states have already done the same, since these cases establish a legal precedent for the decision.

Another part is a simple reflection of the changing attitudes of people in our country. In a Gallup poll that ran from 1996-2013, Americans were asked if they thought marriages between same-sex couples should be recognized by the law as valid, with the same rights as “traditional” marriages. As time has gone on, the percentage of Americans who believe same-sex marriages should be valid has generally increased, rising from 48 percent in 2011 to 54 percent in 2013. Furthermore, in another Gallup poll published in July 2013, 52 percent of Americans said that if they were able to vote directly on social issues they would vote for a federal law that would make same-sex marriage legal in all 50 states.

Another 2013 poll showed that most Americans (74 percent of 18-34 year olds, 54 percent of 34-53 year olds and 51 percent of those 55 and older) found “gay and lesbian relations” to be morally acceptable - 59 percent in total, up from 40 percent in 2000. These statistics show a striking change in American society – total acceptance of homosexuality is clearly coming closer to being a full reality. And, although our nation’s stance on marriage equality and societal acceptance are not the same (if gay marriage were legalized in each state, it’s not likely homophobia would suddenly disappear, they are, at least somewhat, related.

With all of this growing momentum, then, why is it that gay marriage seems to have so recently hit a wall?

The short story is that, one by one, states are hearing and deciding on same-sex marriage cases individually. The majority of these decisions have been in favor of marriage equality – in fact, up until last week, every decision since the Windsor case was in favor of marriage equality. On November 6, much to the shock and disappointment of many marriage-equality advocates, judges for the Sixth Circuit Court (comprising Kentucky, Michigan, Ohio and Tennessee) upheld gay marriage bans in those states. Marriage equality advocates like the folks at the Human Rights Campaign were quick to criticize the court for their decision, calling it “shameful” and “on the wrong side of history.”

SEE ALSO: Supreme Court Likely To Decide Fate of Same-Sex Marriage Bans

However while this decision surely poses a problem for those in favor of legalization of same-sex marriage on a state-by-state basis, it actually may serve as a benefit to the overall marriage equality movement in the end. 

Thus far, same-sex marriage has only been moving through our nation on a state-by-state, case-by-case basis. And, while we have seen incredible progress through this approach, there are issues with it being anything more than a temporary solution to the marriage equality question. For example, the state-by-state scenario leaves open the possibility that all states in the U.S. except one (or two or three) could legalize same-sex marriage. If this occurred, it is possible that the majority of gay people would refuse to live in those states, thus turning them into a bigot’s paradise: a state where a minority has been driven out because of a simple lack of legal protection. For the debate on marriage equality to truly end, the Supreme Court would have to rule on it – and, while it may seem counter-intuitive, the “shameful” decision of the Sixth Circuit may be the very thing that pushes the Court to finally hear a same-sex marriage case. 

In late September of this year, Supreme Court Justice Ruth Bader Ginsberg noted that, since all decisions on the lower court level had been unanimously in favor of same-sex marriage, there has been no "urgency" for the Supreme Court to hear a same-sex marriage case. And, despite the fact that the lack of nationwide marriage equality leaves loving couples without certain benefits in 35 percent of the country, the Court seemed to prove Ginsberg's point and chose to not hear a same-sex marriage case about two weeks later. By dodging the marriage equality question in this way, the Court's decision actually had the effect of legalizing gay marriage in an additional five states - by refusing to hear the appeals for gay marriage bans that has been struck down in each of these states.

By creating a split in lower courts, however, the Sixth Circuit may have elevated the “urgency” of the Supreme Court taking on a same-sex marriage case. There is now a difference between the opinions of different states, a discrepancy the Supreme Court will ultimately have to resolve. Perhaps the justices of the Sixth Circuit are not quite as crazy as we think they are. 

As far as I’m concerned, the only way that this issue will ever be resolved is by the Supreme Court hearing a case on same-sex marriage – and ruling that gay marriage bans are unconstitutional. Any other decision would be completely inconsistent with the desires of the majority of the country and, honestly, I don’t think it’s likely. The question, for me, is not if the Supreme Court will rule in favor of same-sex marriage, but when. And, if that does happen, how will the gay rights movement – which has focused on marriage equality for many years as its seemingly ultimate goal – continue to move forward towards the truly ultimate goal of greater, global acceptance for all people, no matter who they love?

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Contact columnist Ariana Aboulafia here; follow her here.



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