Constitution Check: Will the politics of 2012 influence the constitutionality of gay marriage?

Image via Chris Walton/Flickr.

Lyle Denniston looks at the prospects for a constitutional right to gay marriage after Tuesday’s milestone referendum votes.

The statements at issue:

“Yesterday, in a historic election for gay and lesbian Americans, voters in Maine and Maryland approved ballot initiatives in support of marriage equality, an anti-marriage equality amendment was defeated in Minnesota, and Tammy Baldwin of Wisconsin became the first openly gay or lesbian person elected to the United States Senate. The votes for Washington’s Referendum 74, which would also approve marriage equality in the state, are still being counted, but the results look optimistic.”

– Adam Umhoefer, executive director of the American Foundation for Equal Rights, in a statement November 7 commenting on some of Tuesday’s election results. His organization was the sponsor of the high-profile lawsuit that successfully challenged the constitutionality of California’s Proposition 8, a ban on same-sex marriage in that state.

“No matther whether th’ constitution follows th’ flag or not, th’ Supreme Coort follows th’ election returns.”

– Celebrated fictional comment in 1901 by a comic character, Mr. Dooley, the creation of Chicago humorist and writer Finley Peter Dunn.

We checked the Constitution, and…

Politically, if not constitutionally, the country’s view of gay rights may well be changing, perhaps beginning to prove that recent polling data is right. Not since the gay rights movement began with the Stonewall Inn riots in New York City in 1969 have there been political gains to match those of Tuesday.

A key question now arises: Will those results give the U.S. Supreme Court some cover to take further steps toward constitutional equality for gays and lesbians?

After 32 straight defeats for same-sex marriage when the issue was put to a state’s voters,
all four ballot measures went the other way.

Here were the actual results:

Maine: The voters were asked on Question 1: “Do you want to allow the State of Maine to issue marriage licenses to same-sex couples?” The voters answered yes, by a 52.84 percent to 47.16 percent margin, according to the Maine secretary of state.

Maryland: On Question 6, the voters were asked whether to allow a legislatively approved bill to permit gay and lesbian couples to marry to go into effect next January 1. The voters said yes, by a 51.9 percent to 48.1 percent margin, according to the Maryland secretary of state.

Minnesota: The state already has a state law defining marriage as between a man and a woman, but voters were asked whether they wanted the state to go further, under Constitutional Amendment 1, and put that definition into the state’s constitution. The voters said no, by a 51.15 percent to 48.85 percent margin.

Washington: In Referendum 74, the voters were asked whether to allow a legislatively approved bill to permit same-sex couples to marry to go into effect immediately. The voters said yes, by a 51.79 percent to 48.21 percent margin, according to the Washington secretary of state.

About Constitution Check

• In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

There was one other vote directly related to the same-sex marriage issue, and it followed the apparent trend set on Tuesday. In Iowa, where voters two years ago had removed from the State Supreme Court three justices who had joined in a ruling establishing a state constitutional right to such marriages, the voters this time agreed to let a fourth—Justice David S. Wiggins—to remain on the court. The vote was 54.52 percent in favor of retention, 45.48 percent against, according to the Iowa secretary of state.

Among those results, perhaps the most symbolically important was the Minnesota vote, even though it did not create a right to gay marriage because of the existing state law. That state was the origin of a case in which the U.S. Supreme Court in 1972 upheld a State Supreme Court ruling finding no constitutional right to enter such a marriage.

That case, Baker v. Nelson, will soon be under study again by the U.S. Supreme Court as it ponders 10 pending appeals on the issue, with opponents relying upon that case to argue that the issue is already settled against such marriages. Minnesota’s voters may have sent a message that times are changing in that state, too.

The justices are scheduled to take up all of those new cases at a private conference on November 20. If a majority of the justices see the Tuesday election results—and the justices very likely are aware of those outcomes—it might make the acknowledgement of marriage equality seem a less daunting choice.

On the other hand, some justices might be persuaded that Americans are dealing with this in the election process, so there may be value in letting that process work before the court intervenes.

While none of the new cases seeks directly to establish a constitutional right to gay marriage, any victory for gay rights in any of those cases would be a major constitutional beginning to go along with what is beginning to happen in the states.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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Constitution Check: Will the politics of 2012 influence the constitutionality of gay marriage?