Same-sex marriage sure to return to Supreme Court

Michael Knaapen (left) and John Becker reacted to the news that the Supreme Court ruled that the Defense of Marriage Act was unconstitutional.EPA/file 2013

A decade ago at the stroke of midnight, when gay couples legally exchanged vows for the first time, some hoped — while others feared — that something fundamental had changed in American society.

But for years Massachusetts stood alone, the only state to recognize the marriage of same-sex partners as voters elsewhere rushed to pass constitutional bans. Even as other states slowly joined in, either through court decisions or legislative action, there was little sense that gay marriage was about to sweep across the nation.

But in the last year alone, as the 10th anniversary approached, there has been an explosion of similar court rulings across the country affirming the rights of gays to wed, even in historically conservative states, a domino effect that has now spread same-sex marriages to a third of the country.

“Massachusetts got it right, and its decision continues to be vindicated,” said Mary Bonauto, the lead lawyer for the Gay and Lesbian Advocates and Defenders team that won the initial Massachusetts court decision in 2003, known as the Goodridge decision. That ruling was stayed six months until May 17, 2004, when the first wave of marriages began.

“It’s astonishing to see how many times the courts now cite the Goodridge decision, as they should,” she said.

Most recently, in the last two weeks, a federal court in Idaho struck down a ban on same-sex marriage, while a state judge in Arkansas opened the door for gay weddings in that state before a higher court intervened late Friday.

That makes seven decisions in six months that brought same-sex unions to states not generally on the cutting edge of the gay rights movement; Virginia, Texas, Oklahoma, Utah, and Michigan are the others. Most have been stayed pending the appeals process,

“It is snowballs getting bigger, dominoes falling,” said James Esseks, head of a national gay and lesbian rights’ project for the American Civil Liberties Union. “It has crossed the line to the point where the majority of the country is seeing this as clearly right and clearly inevitable.”

The path was not always clear. Bonauto recalls rumblings in the antigay marriage movement and even within legal circles that the Massachusetts decision would be isolated, an “island” in the law. Not long after the Massachusetts decision, GLAD’s attempts to secure the rights of gays to marry failed in New York, Maryland, and Washington courts, and Bonauto was thinking, “We’re not getting anywhere.”

Even here in Massachusetts, as the Goodridge case was pending and for years thereafter, same-sex marriage supporters were fighting off proposed constitutional amendments that would have blocked the rights of gays to marry.

But while Massachusetts residents were initially split over the court’s sanction of gay marriage, support deepened as voters saw, as Bonauto put it, that gay marriages did not erode the concept of a family.

Governor Deval Patrick supported the rights of gays to marry in his 2006 campaign and voters began contacting state legislators in support of same-sex marriage. Bonauto quoted a former legislator who used to say, “There’s no better argument for gay marriage than gay marriage itself.”

“People needed to see that nothing bad happened when we got married, and furthermore that many good things in fact happened,” said Arline Isaacson, cochairwoman of the Massachusetts Gay and Lesbian Political Caucus who recalls the legislative debates over gay marriage as the most intense she has seen. Legislators panicked over how to vote for the proposed constitutional amendments: Even if they supported same-sex marriage, they knew they could suffer voter backlash.

Isaacson said it was only after the first weddings took place — and after former governor Mitt Romney, a gay-marriage opponent, left office — that political leaders and voters alike embraced the rights of gays to marry.

“It wasn’t scary anymore,” she said.

By 2008, courts in Connecticut and California issued similar rulings, and the Iowa Supreme Court followed suit in 2009. Legislatures in Vermont, New Hampshire, and the District of Columbia began approving same-sex marriage laws. By 2012, voters were approving gay marriages by referendum, in Maine, Washington, and Maryland.

Perhaps the most significant development since the Goodridge decision came last year when the US Supreme Court struck down parts of a federal law, the Defense of Marriage Act, that defined marriage solely as union between a man and a woman. The ruling, forcing the federal government to recognize legally approved marriages, was based on equal protection and antidiscrimination grounds, and the ruling has since been used to challenge state constitutional bans on gay marriage.

Federal courts in Michigan and Idaho, for instance, struck down state bans in those states, citing the DOMA decision.

US Attorney General Eric Holder said in March that the federal government will recognize the marriages that occurred before the stays were granted.

Legal analysts say that the federal appeals process will further fuel the debate over same-sex marriage in the country, inevitably setting up an appearance before the US Supreme Court, possibly within the next year.

While 17 states have recognized same-sex marriage — a chunk of them in 2013 — 29 still have constitutional bans. The decisions that overturned those bans in several states also will probably ultimately land with Supreme Court, which would have to determine whether the bans were constitutionally valid.

“They may not have a way to avoid the decision,” said Gary Buseck, legal director for GLAD of Massachusetts.

The nation’s high court refused to intervene in a case about California’s gay marriage ban last year, finding that the gay marriage opponents who wanted to defend the ban had no standing before the high court.

But legal analysts said the court could be seeing a country ready for a decision. A record-high 59 percent of respondents in a recent Washington Post-ABC poll said they support same-sex marriage, while 34 percent are opposed.

“Who would have predicted, even two years ago, that there would have been this string of cases?” Buseck said. “This was a movement that was happening slowly, deliberately. . . . There has been this incredible burst of litigation.”

The recent cases are making waves particularly because they are occurring in historically conservative states, where even the most active proponents of same-sex marriage are surprised with the progress.

“It just really felt it was never going to happen,” said Jon Fitzgerald, interim executive director of Affirmations, a community center for gays and lesbians just north of Detroit.

“We’re just so grateful to states like Massachusetts,” he said in a phone interview. “Now we’re just knocking them down across the country, putting some momentum to this movement.”

Opponents of same-sex marriage take heart from the fact that a majority of states still ban gay marriage.

Brian S. Brown, president of the National Organization for Marriage, said that federal judges are misusing the Supreme Court’s DOMA ruling – which he argues was limited in its scope — to force their own definition of equal rights onto states that want no part of gay marriage.

“You have this fight in the American public, there’s an ongoing debate,” Brown said. “Now you’re in a state where the proponents of same-sex marriage are using the courts to force their will on the American people.”

Late Wednesday night, Idaho’s governor, C.L. “Butch” Otter, appealed the most recent federal decision striking down the ban in that state, saying he was defending the 2006 voter-approved initiative that goes “to the heart of Idaho’s values and respect for the family unit as it’s been embraced by society for millennia.” On Thursday, the US Court of Appeals for the Ninth Circuit agreed to prevent any marriages in that state until an appeal could be heard.

“We have seen enough federal judges around the country ignoring the expressed will of voters and the constitutionally protected sovereignty of states that we know this issue will be finally decided by the United States Supreme Court,” Otter said in a statement.

But Dana Nessel, one of the lawyers who won the court decision in Michigan, said the recent court decisions preserving equal protection for same-sex marriages have been clear. She said the federal judge in her case dismissed the state’s arguments that gay marriages would erode the typical makeup of a family, and Nessel said she had been able to argue that states like Massachusetts “didn’t fall into the ocean.”