Americans will have many things on their minds in November, but what voters do in four states and what nine Supreme Court justices do around a big walnut table in Washington may go far to shape the future of same-sex marriage across the nation.
Photo by Flickr user Fibonacci Blue
On November 6, voters in Maine, Maryland, Minnesota, and Washington state will cast ballots on measures that will provide the latest tests of how same-sex marriage is viewed when put to the people themselves. Gay rights advocates are certain that the country’s attitude on that issue is shifting, and the November 6 results may provide a new reading of popular sentiment.
And on November 20, the Supreme Court’s members are scheduled to take their first look at 10 separate filings on constitutional issues over marital rights for gays and lesbians. Whether Tuesday’s state ballot measure results have any impact on the court may not be known for some time, if ever. But at least a partial constitutional answer is likely to emerge from the court by next summer.
So far, the nation’s voters and its state legislatures have not been sympathetic to such marriages. A total of 39 states have either banned it by constitutional amendment or by state laws. An anti-gay-marriage proposal has never lost when put to a statewide vote. Six states and the District of Columbia allow such marriages.
Some polls suggest that next Tuesday might bring a shift. Polling data lately has shown that the pros and the antis are divided, sometimes deeply and closely so, in the four states.
Here is what is on the ballot:
In Maine, Question 1 asks the voters whether they want to use their direct legislative power through a “citizen initiative” to declare that “marriage is the legally recognized union of two people,” and to end the use of gender-specific language in marriage laws there. It also would recognize the validity of same-sex marriages performed elsewhere.
In Maryland, Question 6 asks the voters whether they want to allow a bill passed by the legislature to go into effect, changing Maryland law so that gay and lesbian couples may obtain marriage licenses. The state’s legislature passed House Bill 438, and the governor signed it into law on March 1. It is due to take effect next January 1, but only if it wins the voters’ approval.
Minnesota already has a state law that defines marriage in that state as only those between a man and a woman. Opponents of such marriages have put on the ballot a proposed amendment to the state constitution that would nail down that ban, declaring that “only a union of one man and one woman shall be valid or recognized as a marriage in Minnesota.”
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In Washington state, the voters will cast their ballots on Referendum 74. It asks them to approve or veto a bill passed by the state legislature and signed by the governor–Senate Bill 6239–that would allow gays and lesbians to get married, and would make all marriage laws in the state gender-neutral. Under the bill, “domestic partnerships” that are currently recognized as valid would be converted to marriages after 2014.
Because of the lengthy string of defeats for same-sex marriage at the polls, a victory for those marital unions in any state would be considered in many quarters as proof that attitudes are changing, as polls on the issue seem to be suggesting.
Exactly two weeks after Election Day, the Supreme Court justices are scheduled to discuss in a private session in their conference room seven different rulings by lower federal courts, all favoring same-sex couples. There are 10 separate petitions seeking review by the justices–eight by supporters of marriage equality, and two by opponents.
Those petitions started arriving at the court in June, and as the number built up, the court staff started gathering them for the justices’ consideration all at once. Last week, the court put out the word that all will be considered just before its Thanksgiving break, on November 20.
One notable thing about all of the cases is that, even if all of the lower court decisions were to be upheld, the result would not be the establishment of a constitutional right of gays and lesbians to marry.
That is not an issue in any of the ten petitions, although one filed by the House of Representatives’ Republican leadership asks the court to declare that one of its own precedents–a brief, one-sentence ruling in 1972 dismissing a gay marriage plea from two Minnesotans–already has determined that there is no such constitutional right. The current meaning of that precedent, in the case of Baker v. Nelson, is at issue in all of the cases, but no lower court has accepted the argument that it settled the matter.
Eight of the 10 petitions involve the constitutionality of the federal Defense of Marriage Act, a 1996 law providing that any time a federal law refers to marriage, it means only a marriage of a man and a woman. Thus, even same-sex couples who are legally married in one of the six states (or Washington, D.C.) where such marriages are allowed would not be eligible for any benefits or opportunities under more than 1,000 federal provisions.
The House GOP leaders have taken over the legal defense of DOMA, after the Obama Administration last year changed its mind and started arguing that the ban on benefits is unconstitutional. The Republican leaders are the only ones defending DOMA in the Supreme Court filings.
One of the new petitions was filed by the sponsors of California’s Proposition 8, a flat ban on same-sex marriage in that state, approved by the voters in 2008. That measure was challenged in a wide-ranging lawsuit that sought to establish equal marriage rights under the Constitution for same-sex couples, but as it emerged from the Ninth Circuit Court of Appeals, that issue was left undecided. A far narrower ruling, but still striking down the ballot measure, came from that court.
The tenth petition is by the state of Arizona, seeking to revive a state law that is somewhat similar to DOMA but applies only to employees of the Arizona state government. Under that law, state workers’ marital benefits are available only to those who are legally married in the state, and Arizona does not allow gays and lesbians to wed.
The Supreme Court is not expected to agree to hear all of the petitions. It is more likely to select one or more that seem to raise issues common to all of them.
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.