By Robert J. Hume
The same-sex marriage decisions at the Supreme Court on Wednesday represented important wins for same-sex couples, even if the victories were not quite complete. After Wednesday’s rulings, section 3 of the federal Defense of Marriage Act is no longer constitutional, and California’s Proposition 8 has been effectively voided. However, same-sex marriage prohibitions remain in place in other states.
The question now looming for LGBT public interest groups is where to go from here.
The decisions would seem to put supporters of same-sex marriage in a difficult position. On the one hand, federal litigation is probably foreclosed for the near future. Despite Justice Scalia’s off-handed remark in his dissent in the DOMA case, U.S. v. Windsor, that the next challenges to state marriage laws would come “maybe next Term,” the litigation process is unlikely to move so quickly. It will probably be years before another test case emerges, and when it comes there is no guarantee that the justices will hand same-sex couples a broad victory.
That said, there is language in Windsor pointing towards a more sweeping decision sometime in the future. Justice Kennedy’s majority opinion remarks on the “personhood and dignity” of gay people, extending themes that Kennedy developed in previous landmark gay rights cases like Romer v. Evans (1996) and Lawrence v. Texas (2003). Once again, Kennedy has established that laws cannot be motivated by a “desire to harm a politically unpopular group.” Quite potentially, the Supreme Court might be persuaded in a future case that state prohibitions of same-sex marriage do just that. But that decision, if it comes, is likely a few years off.
State by state, LGBT public interest groups are also reaching the limits of what they can accomplish through ordinary legislative or judicial means. Even though Proposition 8 has been overturned, judges in thirty other states are still constrained by state constitutional amendments defining marriage as the union of one man and one woman. These amendments also limit state legislative activity. It would seem, then, that the opportunities for supporters of same-sex marriage are rapidly diminishing.
But appearances can be deceiving. The prospects for same-sex marriage in the states seem gloomy only if we think of state constitutional amendments as being more permanent than they really are. The misperception arises because the procedures for amending the federal constitution are very burdensome, requiring the support of two-thirds of Congress and three-quarters of the states. We hardly ever enact federal constitutional amendments, let alone repeal them. We only repealed a federal amendment once, with the Twenty-First Amendment striking down the Eighteenth Amendment’s prohibition of alcohol.
However, state constitutional amendments are not nearly so difficult to enact—or to repeal. In most states, amendments require the support of only a simple majority of citizens after they have been proposed by the state legislature or the citizens directly. The relative ease of the process is what enabled thirty-one states to enact amendments so quickly in the first place.
These same amendments can be overturned just as easily if majorities of the public are willing, and recently support for same-sex marriage has been increasing. Recent polls have consistently placed national public support for same-sex marriage at above 50%. Even more encouraging, the shift in public opinion has translated into victories at the ballot box. This past November, supporters of same-sex marriage won victories in Maine, Maryland, Washington, and Minnesota, the first time that the issue has won popular support in state ballot initiatives.
Of course, there are many states in which same-sex marriage will still lose in a popular vote. It is the public opinion in each state that counts, regardless of how much public opinion nationwide is changing. In many states, support for marriage equality has not come far enough.
But supporters of same-sex marriage would do well to chip away at states in which public opinion has changed. If the amendments in these states are successfully overturned, the victories might create mandates, persuading state legislators or judges to formalize the legalization of same-sex marriage within their borders. As the number of states legalizing same-sex marriage increases, the pressure for other states to follow suit will increase.
Moreover, an implication of Wednesday’s Proposition 8 case, Hollingsworth v. Perry, is that if state governments disapprove of same-sex marriage amendments enacted through ballot initiatives, they might be able to undermine the amendments by refusing to defend them in federal court. It will be interesting to see whether other state governments follow California’s example.
The Supreme Court may not have given same-sex couples the full victory they wanted, but the movement is far from over. The state constitutional amendments that washed over the country in the past decade can be washed away just as quickly, as LGBT public interest groups take advantage of initiative amendment procedures that have previously worked to oppress them. With public opinion now shifting, it is time to turn the tide.
Robert J. Hume is an Associate Professor of Political Science at Fordham University. His new book Courthouse Democracy and Minority Rights: Same-Sex Marriage in the States, is available at Oxford University Press.