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How the last two weeks changed everything for marriage equality


For same-sex couples that want to get married in America, the events of the past two weeks changed everything — or perhaps, proved how much everything already had changed.

On October 6, the United States Supreme Court effectively legalized marriages between gay men and women in 11 additional states, on top of the 19 (plus the District of Columbia) that already allowed it. That decision — though it was technically a choice not to weigh in on the issue — altered this modern civil rights battle so dramatically that even longtime LGBT rights advocates say they couldn't have predicted it

"I'm blown away by this," said James Esseks, a lawyer who heads the American Civil Liberties Union's legal efforts concerning LGBT rights, in an interview with the Washington Post.

And why wouldn't he be? Forget gay marriage for a moment. It wasn't so long ago anti-sodomy laws were still on the books in some states.

"I argued the big Supreme Court case, Lawrence v. Texas, when states were putting people in jail for same sex. At the time we didn't have any impression that we'd be this far along in 11 years," Paul Smith, a partner at the Washington, D.C. law firm Jenner & Block, told Vox. Even as recently as five years ago, he said, "It was hard to see it moving this quickly."

Marriage equality is the new normal

The Supreme Court, by refusing to hear appeals against pro-gay marriage decisions in Indiana, Oklahoma, Utah, Virginia, and Wisconsin, effectively legalized gay marriage in those states. But because the judicial circuits in question also covered Colorado, North Carolina, South Carolina, Kansas, West Virginia, and Wyoming, those states will also have to abide by the ruling.

Those 11 states join California, Connecticut, DC, Delaware,  Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington, which have already legalized gay marriage.

According to calculations by the University of California, Los Angeles School of Law's Williams Institute think tank, that means that nearly two-thirds of same-sex couples in the United States will soon live in states where they can tie the knot.

And just 14 days after this major legal development, there was more: On October 20, President Obama declared more decisively than ever before that he believes the Constitution protects marriage between two men or two women.

That's quite the shift from when, as a candidate, he opposed same-sex marriage, only going as far as to support civil unions (and later "evolved" to believe "same-sex couples should be able to get married.") Yet, his remarks this week — where he went beyond mere support for the idea to calling it a constitutionally protected right — barely caused a stir.

A few years ago, this was unthinkable

New York City's Gay Pride Festival and March, 2013 (Shutterstock)

Perhaps, in both cases, that is what's most amazing: how routine the march of same-sex marriage has become, when a few short years ago, it was unthinkable.

In 2005, a New York Times op-ed tightly summed up the conventional wisdom on the politics of gay marriage: it was a catastrophe for Democrats that may well have lost them the 2004 election — even though their nominee, John Kerry, opposed marriage equality. "As last year's disastrous crusade for gay marriage illustrated, Democrats cannot allow their constituencies to draw them into political terrain that can't be defended at election time," Paul Starr wrote.

In 1996, when Barack Obama was running for State Senate in Illinois, he told a local gay newspaper that he supported same-sex marriage. "I favor legalizing same-sex marriages, and would fight efforts to prohibit such marriages," he wrote. But by 2008, he had gotten with the political program. "I believe marriage is between a man and a woman," he told MTV. "I am not in favor of gay marriage."

What's striking about Obama's latest "evolution," paired with the Supreme Court decisions, is how little political controversy they've created. National Republicans haven't condemned the decision as "judicial activism." The GOP's 2016 hopefuls haven't lined up to blast Obama's statement as another example of liberals trying to legislate from the bench.

"It's interesting, in the states where the decisions started to go into effect in the past few weeks, you haven't seen any great backlash. Everyone's just like, ‘okay' ... " said Smith.

Let it sink in: that's an "okay" to the fact that legal same-sex marriage will be the norm in America — so much so that there's apparently an open spot for the issue that will be designated the "next big culture war." It's a collective shrug with massive significance.

There's probably no turning back

San Francisco's Gay Pride Parade, 2013 ( Kobby Dagan / Shutterstock)

While it's still possible that the Supreme Court could, in the future, decide there's not a constitutional right to same-sex marriage, nobody who follows these issues thinks that's likely. The New York Times declared that the decision "could signal the inevitability of the right of same-sex marriage nationwide." That's because, while there could be a future Supreme Court ruling on the underlying Constitutional question that Obama weighed in on, we now have a big clue about the justices' state of mind on this issue, and so do courts throughout the country.

"[The Court's recent action] supports the prevailing assumption that a majority of justices support a right to same sex marriage, and it will mean that lower courts are more likely to rule in the same way," said Smith.

And if, by chance, an appeals court does rule that state prohibitions against same-sex marriage are allowed under the Constitution, "the Court will clearly take the case and decide the issue," Esseks told the Washington Post. And, he said, the recent monumental action offers "more than a hint about what the Court will do."

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