Thursday, August 21, 2014

A complete victory for marriage equality could be a year away

Justin Sullivan / Getty Images News

At this point, it's looking more and more likely that the battle for marriage equality will once again reach the Supreme Court.

By Paul Smith's estimate, it's going to take at most two years for the nation's top court to retry the same-sex marriage issue — and this time, they're expected to settle the issue once and for all.

Smith is arguably the leading LGBT rights litigator in the country. He led the Supreme Court case that struck down state-level bans on gay sex and is part of the law firm, Jenner and Block, that successfully contested the Defense of Marriage Act (DOMA), which banned same-sex marriages at the federal level.

After it was decided in June 2013, the DOMA case led to an avalanche of lower court rulings in favor of marriage equality. In just May, lower courts have supported same-sex marriages in four states. In the past week, Oregon and Pennsylvania had their bans struck down altogether. The two weeks before, courts rejected bans in Arkansas and Idaho, but eventually put the rulings on hold as they work through the appeals process.

Across the rest of the country, more than a dozen other federal and state rulings landed in favor of same-sex marriage rights. There have been zero rulings against marriage equality since the Supreme Court's 2013 decision.

As of today, 19 states and the District of Columbia allow same-sex marriage. But this, LGBT advocates hope, is only the beginning.

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Where these rulings are going

Before the issue of marriage equality rises to the Supreme Court again, it must work through two more major hurdles. First, a circuit court must hear and rule on the appeals. Then, the case must be appealed again and the Supreme Court must agree to take up the appeal.

Two of the most advanced cases — from Utah and Virginia — will eventually land on the Fourth and 10th Circuit Courts. Smith estimates that, in a fast scenario, these cases will be decided in the summer, petitioned for appeal in the fall, and decided by the Supreme Court next June. In a slower scenario, the cases could be procedurally stalled and end up in front of the Supreme Court in 2016.

So far, judges have struck down same-sex marriage bans through the Equal Protection Clause of the US Constitution, which attempts to ensure all Americans are treated equally and fairly by their governments. It's likely that legal basis will continue all the way to the Supreme Court.

Once it reaches the highest court in the nation, Smith expects a ruling in favor of marriage equality.

"I think that most observers think there are five [of nine] votes for the pro-equality side — the same five that felt the Defense of Marriage Act was unconstitutional," he says.

There's another, although less likely, possibility. First, the appeals courts could unanimously rule in favor of marriage equality. Then, the Supreme Court could refuse to hear any of the appeals of those cases. That would, in effect, legalize same-sex marriage across the country: if the Supreme Court doesn't agree to hear any of the pro-equality appeals, opponents of same-sex marriage would have no other court to turn to.

Smith, however, remains skeptical of that scenario. "My personal view is that the Supreme Court wants to be the one to decide this issue, not the lower courts," he says. "So the Supreme Court will probably take it."

How America got to this point

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Jewel Samad / AFP via Getty Images

It's been a long path to marriage equality for LGBT advocates. It was only 10 years ago that Massachusetts officiated the first legal same-sex marriages, and only 11 years ago that the Supreme Court struck down bans on gay sex.

The journey to this point, Smith explains, was somewhat strategic.

"Once people started being married in Massachusetts, the question was, 'What do we do about the fact their marriages aren't being recognized by the federal government?' And this was during a period in time in when nobody thought we should be taking a marriage case to the Supreme Court," Smith says. "They were going to state courts around the country, and they thought they would take one state at a time."

That process, however, turned out to be too slow. In 2008, LGBT activists decided to begin a challenge against the Defense of Marriage Act. They felt confident in at least one angle of their case: the federal government shouldn't be able to ignore states' marriage rules.

"It had a federalism aspect to it: the federal government trumping state decisions over things that ought to be in the states' domain," Smith explains

If the challenge worked and the Defense of Marriage Act was struck down, LGBT advocates hoped the legal precedent would set the groundwork for legal challenges against all same-sex marriage bans across the country. Based on the past year of same-sex marriage rulings, that hope has turned out to be right.

One thing has, however, taken Smith by surprise: how fast it's all happening.

"It's interesting and surprising how quickly courts are getting to the merits of deciding the cases — expediting briefings, expediting cases," Smith says. "Courts usually take their time about things, but somehow there seems to be a perception that this is an issue that needs to be decided fairly quickly."

Changes in popular opinion helped, too

Americans like to think that their judicial system is outside the traditional boundaries of politics and democracy. Judges are supposed to judge laws and the Constitution based on legal rationale and logical reasoning, not the political squabbles of the day.

In practice, it doesn't always work out that way. That's why one of the most powerful roles of the president is to appoint Supreme Court justices when a former justice retires; getting just one extra vote in the nine-person court can be enough to swing the most prominent cases, from privacy rights to abortion to marriage equality.

"There's an old expression: the Supreme Court follows the election results, too," Smith says. "The way constitutional law functions is it responds the popular views, even though sometimes the court is required to do things that are very unpopular."

Indeed, part of what makes LGBT activists so confident in their current position is the growing popular support for LGBT rights. Just four years ago, Gallup found a majority of Americans didn't support same-sex marriage. Today, 55 percent do.

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And based on generational trends, support for LGBT rights will only grow over time.

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This, in a way, also gives LGBT activists a back-up option if the current legal challenges somehow fall flat: they can always turn to popular opinion. In this kind of legal and political environment, same-sex marriage rights almost seem inevitable.

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