While those involved in the fight for same-sex marriage have been working for what seems ages, in reality a win in the Supreme Court would come faster than ever anticipated when the fight began. It is entirely possible that marriage equality will be the law of the land by the end of June. In the past year the Supreme Court has rejected appeals by a number of states to stay pro same-sex marriage rulings. Then last week, the court agreed to hear a case, actually four cases they have combined into one, that could allow them to rule that same-sex marriage is a right guaranteed by the Constitution.
In a New York Times column Adam Liptak wrote, “Something unusual happened: in agreeing to hear four same-sex marriage cases, the court framed for itself the issues it would address.” This has led to lawyers and constitutional scholars debating what it could mean for the decision in the case. They are debating whether it was a way for Chief Justice Roberts and the conservative wing of the court to slice and dice the decision or simply paved the way for a clear decision.
The slicing and dicing could include deciding a legal same-sex marriage in one state would have to be recognized by all others yet not saying clearly the right to marry was guaranteed by the Constitution. This could lead to all sorts of issues like those marrying in the District of Columbia during a long weekend here having their marriage recognized in every state including Michigan, which itself doesn’t allow same-sex marriage; or a lot of other permutations potentially calling into question many existing same-sex marriages.
Having been involved in the fight for marriage equality for many years and being a co-founder in 2005, along with Rick Rosendall of the Gay and Lesbian Activists Alliance, of the Foundation for All DC Families, we know how bringing community together and asking politicians for years before an actual bill or vote takes place to commit to supporting marriage equality makes a difference. GLAA’s work in D.C. and the work of thousands of activists across the nation led me to take the more positive view and believe at a minimum Justice Kennedy will join the liberals on the bench to form a majority and go all the way.
I agree with Susan Sommer, a lawyer with Lambda Legal who is quoted in the Liptak column saying, “It’s a good sign that they took all four cases. It demonstrates that these cases are going to cover the breadth of the pressing issues.” She added, “When you put all the cases together you have an incredibly dramatic look at all the cradle-to-grave harms.”
Then there is the statement by Attorney General Eric Holder who has said the Obama administration will weigh in asking the court to declare the right of same-sex couples to marry is guaranteed by the Constitution. According to Josh Gerstein writing in Politico, “The Supreme Court’s new move toward a definitive ruling on same-sex marriage could cement President Barack Obama’s claim to having presided over the most significant advances in gay rights in United States history.” That won’t stop the debate as to whether Obama was a leader or follower in the fight for marriage equality but it doesn’t really matter. The speed of change, his evolving on this issue and the impact he has had on public opinion will cement his record as the president with the best record helping to secure the civil and human rights for LGBT Americans.
Once the court announces its decision — and if it is as positive as I believe it will be — we will need someone to finally write the accurate history of the fight for marriage equality. That has yet to be done. The books and films that have come out thus far have all been focused on only one case or the fights in one or two states. They haven’t shed needed light on all the activists and groups who over the years have moved this fight forward inch-by-inch. The time to do that history is now while primary sources are still available and can give their personal stories of how they contributed to the victory I believe we will see this June.