It has been an uphill battle for same-sex marriage since the federal Defense of Marriage Act (DOMA) was signed into law back in 1996. Since then, the battle for what is marriage has been fought in the courts, legislature and ballot boxes with significant losses for same-sex couples from coast to coast. Yet, recent events seem to indicate that the tide might be changing.
DOMA defines marriage for the federal government as between one man and one woman and allows any state to ignore theU.S. Constitution’s Full Faith and Credit Clause by not acknowledge the validity of another state’s legal same-sex marriage within its borders. The National Conference of State Legislatures states that while DOMA-style state laws started to appear in 1993 when Hawaii was poised to be the first state with same-sex marriage, out of the 38 states that have currently join in, none of the 31 states with state constitutional amendments did so before DOMA’s passage.
The Massachusetts Supreme Court made their state the first to allow gay nuptials in 2004, much to the chagrin of then Governor and now U.S. Presidential candidate Mitt Romney. Romney even dusted off an old Marriage Evasion Act in an attempt to use the 1913 law commonly believed to stop non-resident interracial couples from marrying in Massachusetts and then returning to one of the 30 states that outlawed such marriages at the time. The law was repealed four years later in 2008.
Since 2004, a total of six states and the District of Columbia have enacted same-sex marriage through judicial or legislative means. California has seesawed between legal and illegal with it Prop 8 battles. In 2009, Maine residents repealed their newly enacted same-sex marriage law at the ballot box. Similarly, Maryland and Washington are looking at the same ballot measure this November. This is joined by a DOMA-style state constitutional amendment in Minnesota and a citizen’s initiative in Maine to reinstate same-sex marriage once again in the Pine Tree State.
The year 2012 marks the first time same-sex opponents seem to be the ones on the defense. On May 31, 2012, the 1st Circuit Court of Appeals ruled that DOMA’s definition of marriage for federal purposes in states that have same-sex marriage was unconstitutional. On October 18, 2012, while the 2nd Circuit Court of Appeals ruled similarly in a separate DOMA case, there was a major distinction.
“There are many differences,” explains Dr. Jillian T. Weiss, Professor of Law and Society at Ramapo College, “but the most startling is the fact that the 2nd Circuit Windsor decision found that DOMA requires a heightened level of judicial scrutiny because it restricts rights based on sexual orientation, a position never before taken by a U.S. appeals court.”
These recent rulings coupled with Prop 8 and two other same-sex marriage wins in the federal court system have drawn the attention of the U.S. Supreme Court (SCOTUS). On October 29, 2012, SCOTUS announced that they would consider these for their current calendar. During a private conference on November 20, 2012, SCOTUS will meet to discuss which, if any, of the five DOMA cases to include on their docket and announce the list on November 26, 2012. If they are heard, a decision will be handed down around June 2013. If the cases are denied review, then the appeals courts’ rulings stand in their respective jurisdictions.
However, just because there have been several wins lately in the federal appeals courts doesn’t mean smooth sailing through the halls of SCOTUS. In fact, some believe that bringing all these cases up to the top is necessary.
“I don’t think it’s important to do so, and I am concerned about Supreme Court review, particularly if they take the wrong case that will make it easier to find that there is no right to same-sex marriage,” cautions Weiss.
“This is a complicated analysis, but the short answer is that it is all going to come down to the swing vote of Justice Anthony Kennedy,” explores Weiss. “If the case chosen presents too broad an alleged right to same-sex marriage, then Justice Kennedy won’t go for it and we will have a bad precedent on the books for years to come. If the case chosen presents a clear and narrowly defined right not to be discriminated against, then he will go for it, and we will have a major steppingstone to full equality.”