In the next few weeks, the battle for marriage equality faces two crucial hurdles. The first is Election Day, when Maryland, Maine, and Washington vote on ballot measures to legalize gay marriage (Minnesota is also considering a constitutional ban). The second is November 20, when the Supreme Court will meet privately to decide whether to hear several different challenges to laws involving gay marriage, including the Defense of Marriage Act and California’s Proposition 8. While many are looking forward to the Supreme Court decision for its potential nationwide impact, they’d be wise not to overlook the importance of Tuesday—not just in the lives of gay men and women in those states but as a key factor in the Supreme Court’s thinking.
So far, more than 30 statewide votes have gone against gay marriage since 1998. If one or more of the states vote yes on Tuesday, it will be the first time a state has legalized gay marriage law by direct vote. Polls in Maine and Washington show slightly more voters support gay marriage than oppose it, but voters who call themselves undecided tend to break again on Election Day, and the votes are expected to be close. In Maryland, the most recent poll by the Baltimore Sun shows a dead heat.
Meanwhile, the Court seems likely to take up one of the challenges to the Defense of Marriage Act, which was ruled unconstitutional by appeals courts in Boston and New York. Ruth Bader Ginsburg has said she thinks the Court will consider DOMA this term. If the Court does take up gay marriage, it will be the culmination of an 18-month period of significant momentum, starting with New York’s legalization of gay marriage in June 2011 and continuing with the Ninth Circuit’s invalidation of California’s marriage ban, the appeals court rulings, the end of Don’t Ask Don’t Tell, and President Obama and the Democratic Party’s declaration of support for gay marriage. Historically, this kind of patchwork progress on social justice issues in states has been extended to the rest of the country by a decision from the Supreme Court or an act of Congress.
That’s why Freedom to Marry, an advocacy organization that has spent $4.6 million on these state referendums, considers its work on the state ballot measures part of a larger strategy to win marriage for everyone in the country with federal action, most likely from the Court. “The key to winning has always been to build a critical mass of states and public support that together create the climate that will most likely enable the Supreme Court, and sometimes Congress, to bring the county to a national resolution.” says Evan Wolfson, the organization’s president, adding “One thing the Supreme Court cares about is where are states headed, where is the momentum, and which side of history they can be comfortable to be on. When we come to the Supreme Court, we want to come with as much progress in the states and as much [positive] public opinion as possible.”
The Court, of course, does look at state laws when considering controversial social changes, including when it comes to LGBT rights. The Court’s previous rulings on anti-sodomy laws are instructive. In 1986, when the court upheld a Georgia law criminalizing sodomy (Bowers vs. Hardwick), Justice Byron White used the high number of states with anti-sodomy laws to justify the court’s decision. “24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults,” he wrote. “Against this background, to claim that a right to engage in such conduct is ‘deeply rooted in this Nation's history and tradition’ or ‘implicit in the concept of ordered liberty’ is, at best, facetious.”
Seventeen years later, when the Court overturned Bowers in Lawrence vs. Texas, Justice Anthony Kennedy cited the states’ evolution on sodomy laws. He wrote: “The deficiencies in Bowers became even more apparent in the years following its announcement. The 25 States with laws prohibiting the relevant conduct referenced in the Bowers decision are reduced now to 13, of which 4 enforce their laws only against homosexual conduct.”
Of course, gay marriage is not yet as popular in the states as anti-sodomy laws were unpopular at the time of Lawrence. Even if all three states vote yes on the referendums Tuesday, there would only be nine states and the District of Columbia with legal gay marriage—a far cry from roughly two thirds of states that permitted interracial marriage when the Court decided Loving vs. Virginia in 1967.
But gay rights activists hope that momentum in the states could make a difference when paired with other factors. The question at issue in the DOMA cases, for example, is whether or not the federal government can ignore some state-sanctioned marriages, a more awkward legal problem if more states legalize gay marriage.
Similarly, activists hope that momentum provided by the states paired with a shift in public opinion, could make a difference. In May of 2009, Gallup showed 57 percent of Americans opposed same sex marriage and only 40 percent supported it, but in 2011, for the first time in Gallup's history, a majority of Americans supported gay marriage rights. In May of 2012, 50 percent supported gay marriage and 48 percent opposed it.
As is usually the case, Justice Kennedy will probably be the deciding vote on any Court decision regarding DOMA. How willing will he be to factor such information into his opinion? “When our precedent has been thus weakened, criticism from other sources is of greater significance," he wrote in Lawrence. "In the United States criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions.”