Four HPR writers explore the legal and political ramifications of the Supreme Court's recent same-sex marriage decisions. From Justice Kennedy's judicial activism and Justice Scalia's originalism to the LGBT equality movement and party politics, these writers explore some of the most pressing questions the justices left us with on June 26. (Update: Humza Bokhari looks back at the various paths leading the first thirteen states to marriage equality.)


HPRgument Posts | July 7, 2013 at 4:11 pm

The First Thirteen


With Hollingsworth v. Perry and United States v. Windsor decided, we can finally say it – we now have in America thirteen states with full marriage equality. After a rocky decade of various versions of “skim-milk,” low-fat, Silk, and empty-carton marriages extending a choose-your-own-adventure set of assorted rights to gays and lesbians across the country, thirteen states have taken a confident step into the 21st century. For many Americans, that means the amazing right to have a wedding that matters. To visit your loved one in the hospital. To file taxes honestly. And yes, even to divorce.

Thirteen, as We the People are well aware, is a significant symbolic number. It was thirteen colonies, from New Hampshire to Georgia, that initially tapped the shoulder of the most powerful empire in the world and told it to kindly get the heck off their lawn. As we’ve reached this meaningful number, and look forward to seeing it grow (we’re looking at you, Illinois, Hawai’i, and New Jersey), human rights activists should take a step back to see the remarkably unique ways these states have each found their way to equality.

So, without further ado: The Original Thirteen. Here are their stories. (Dates in italics indicate when couples could start getting married.)

1. Massachusetts. 2004, court ruling. It was April 2001, and a particular group of same-sex couples were feeling gutsy. Literally days had passed since the Netherlands became the first nation in the world to give same-sex marriage the okay, and same-sex relations were still illegal in many states. With the help of Gay and Lesbian Advocates and Defenders (GLAD), they took the unsuspecting Department of Health in the Bay State to court for denying them marriage licenses. Losing Round One when a Superior Court ruled in the Department’s favor, the pioneering plaintiffs soon found themselves in front of the state’s Supreme Judicial Court. In a November 2003 4-3 ruling, as close as many in the future would be, the SJC cleared its throat and drew the line: No matter how long ago the Commonwealth’s constitution was written, it guaranteed equality, and the state had no good reason to stand in its way. The Bay State got 180 days to make marriage equality happen. In 2004, the celebrations began. The cradle of the Revolution sparked a whole new kind of movement.

2. California. 2008/2013, court rulings. Oh, the Golden State. It took a long four years for State Number Two, on the opposite end of the continent, to join the Bay State’s special club. In 2008, California’s Supreme Court, in another too-close 4-3 ruling, threw out the state’s marriage ban. Conservatives in the state scrambled to reverse the new issuance of marriage licenses to same-sex couples and got the now infamous Proposition 8, which changed the California Constitution to undo the previous victory for equality. Investing heavily and galvanizing a grassroots movement, Proposition 8’s supporters saw themselves victorious – and the brief gay marriage chapter in the Golden State slammed shut.  As it slowly sunk in to Californians what they had done – such as throw 36,000 wedded residents into limbo – and California’s Supreme Court came to the conclusion that the Proposition was, in fact, constitutional, the state scrambled to afford limited rights to gay couples and recognize extant marriages.

After five years of battles that saw a critical change from a Republican administration that would defend the law in court to a Democratic administration that would not – Proposition 8’s opponents arrived at the nation’s highest court, which said, in a 5-4 ruling, that because it wasn’t California doing the defending of its own law (and just the Proposition’s original private-citizen proponents), the Court couldn’t rule on the case’s merits. Because a lower court had ruled that Prop 8 went afoul of the U.S. Constitution, the Supreme Court’s simple “not our territory” sent the case flying back to that initial decision – meaning Prop 8 was out and gay marriages back in.

3. Connecticut. 2008, court ruling. At this nascent stage of gay marriage in America, it was usually the courts who had to find that marriage inequality was an actual infringement of constitutional rights. The same was the case in the Nutmeg State, where in a predictably close 4-3 decision, the Connecticut Supreme Court found a right to same-sex marriage in Kerrigan v. Commissioner of Public Health.

4. Iowa. 2009, court ruling. Few expected a Bush state to join the gay marriage club so much sooner than the other forty-five, but Iowa’s Supreme Court found in Varnum v. Brien that same-sex couples could marry in the state, thanks to its constitution’s equal protection clause. Perhaps even more surprisingly, the decision was unanimous. Of course, being relatively conservative, Iowans gave three of the justices the boot the next year – incidentally, this was the first time Iowa voters ever did so. But gay marriage was there to stay.

5. Vermont. 2009, legislature. The Green Mountain state is known for its liberalism, having civil unions since 2000, but its cavalier attitude means it has little party loyalty, and it isn’t unusual for a Republican to be running the show in Montpelier. Granted, when that does happen, it makes gay rights a little more complicated. Vermont’s General Assembly became the first in the nation to make gay marriage legal, but Governor Jim Douglas would have none of it. Fortunately, the Assembly would have none of his veto, and so overrode it with a smile, and the rest is history. (Incidentally, the General Assembly really wasn’t having it. It had been almost two decades since they last overrode a gubernatorial veto.)

6. New Hampshire. 2010, legislature. New Hampshire, not to be outdone by its western neighbor, quickly got a bill on the table too. Already having civil unions since 2008, gay marriage was not a huge leap for New Hampshire, which swiftly made the changes and has allowed marriages to take place since the start of 2010.

(Bonus: District of Columbia – 2010, legislature. The overwhelmingly Democratic D.C. council voted 11-2 to make gay marriages a reality, and has successfully faced all legal challenges and federal attempts to undo the progress so far.

7. New York. 2011, legislature. The Empire State’s State Assembly narrowly passed the Marriage Equality Act  (80 to 63 in the lower house, 33 to 29 in the Senate), the first ultimately successful attempt in the state to legislate marriage equality. New York became the biggest gay marriage state at the time (California’s Prop 8 was still in effect in 2011), significantly galvanizing the movement and bringin equality to the nation’s biggest city – and the home of Stonewall.

8. Washington. 2012, referendum. One of three states to win marriage at the ballot box for the first time in history during the 2012 election, Washington had initially legalized marriage through the legislature, but, like in California, ballot question proponents quickly moved to put the breaks on its enactment. However, in the four years since 2012, the country’s views on the issue had progressed surprisingly quickly – in the famous Referendum 74, Washington voters embraced equality by a hefty eight-point margin. Later that year, Washington welcomed its first same-sex marriages.

9. Maine. 2012, referendum. Joining Washington in voting for marriage in the 2012 election – a watershed moment for gay rights in America – Mainers nevertheless had a somewhat more rocky road than their compatriots on the other northern corner of the lower 48. The legislature initially approved marriage in 2009  (around the time nearby states Vermont and New Hampshire were moving towards marriage), but a ballot question that year – Question 1 – stopped marriage in its tracks when Mainers decided 53-47 that they were not interested in extending marriage rights. Three short years later, also 53-47, Mainers changed their minds. In another Question 1, the same day as Washington’s Referendum 74, and Maryland’s Question 6, the state of Maine voted to open up marriage to gay and lesbian couples.

10. Maryland. 2013, referendum. Like Washington, Maryland first approved marriage through its legislature – and like Washington, conservative voters decided to bring it to a vote. Fortunately, Maryland’s Question 6 – like Washington’s Referendum 74, and Maine’s Question 1 – won, albeit more narrowly, at 52-48. Maryland’s victory definitely played a role in the surge of optimism in the future of equality in late 2012, but the close vote reminded many that allowing voters to have a say in strangers’ marriages – which definitely sounds odd when you put it that way – was still a risky proposition.

11 and 12. Rhode Island and Delaware.  2013, legislature. Rhode Island and Delaware share a spot not because they’re tiny, but because they’re tied. The Ocean State’s legislature legalized marriage five days before the First State, but the First State, presumably yelling “First!” actually started marriage earlier this month, while Rhode Island is waiting till the start of August to begin issuing licenses. The battle for marriage was particularly tricky in Rhode Island, where a Democratic Senate was reluctant to embrace the bill due to strong Catholic beliefs about traditional marriage that transcended party lines. Nevertheless, when brought to a vote, it passed comfortably.

13. Minnesota. 2013, legislature. The story of our most recent marriage state is a heartwarming one. In 2012, the North Star State beat back a traditional marriage constitutional amendment – something that American history wasn’t too familiar with. The narrow victory paved the way for marriage legislation in the May 2013 wave started by the Ocean State, with Minnesota’s governor signing marriage into law just a week after Delaware. Had Amendment 1 won, such a quick turnaround for marriage would not have been possible. And that is why the barrier faced by gay marriage proponents of constitutional amendments is such a serious obstacle moving forward.

The Supreme Court, June 2013. Supreme Court cases just last month brought marriage back to California, as mentioned above (see Hollingsworth v. Perry) as well as affirmed each state’s right to have all its marriages treated equally under federal law (see United States v. Windsor), which means, in one of these pioneering states, a same-sex marriage is as good as another other. The cows you see in southern California as you drive from Orange to Riverside County must be thrilled – not only do they now have marriage, but it’s the whole-milk variety.

So there you have it. As you can see from above, states have extended marriage rights in three ways. The first is through the judiciary, which has to balance the need to guard minority rights with a shrewd avoidance of overreach and activism. The second is the legislature, which can be both a positive, in that it employs an existing lawmaking process to extend rights, and a negative, in that empowering legislators to decide whether certain people have fundamental rights means that the often-creaky gears of politics could prolong equality for years, if not decades. The third method, arguably the hardest because of the mobilization effort it takes, is bringing marriage to the ballot box. While it empowers individuals in their states to make their own decisions about how they feel about marriage’s redefinition, it is inherently problematic in that it validates the belief that a majority should be necessary in order for a minority to be recognized and protected.

Ultimately, as many had hoped would happen this year, the decision to find a constitutional right to marriage seems to need to come from the Supreme Court. Without court rulings – which started the gay marriage race in the United States and are perhaps the only way to progress from the red-state brick wall of one-man-one-woman constitutional amendments in most remaining states – the accelerating pace of marriage equality might slow down. If there’s anything civil rights doesn’t need, it’s slowing down.

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