Gay marriage has become a states rights issue, a policy decision made on a case by case basis and influenced by the values and viewpoints of each state going t0 trial over marriage bans. This was clearly the intent of the Supreme Court when it ruled against the Defense of Marriage Act in its chosen language. Justice Anthony Kennedy ruled that federally refusing to recognize marriages “impose[s] a disadvantage, a separate status.” But he also made it very clear that this would fall in the hands of states. “The significance of state responsibilities for the definition and regulation of marriage dates to the nation’s beginning,” said Kennedy.
Just as was intended, states are taking on the issue separately, as couples and organizations sue the state to overturn the marriage ban. Unsurprisingly, this has led to a variety of responses from states with different religious backgrounds and more or less conservative legal systems. Even for states that have ruled against the ban, the timeline before marriages are allowed is dependent on appeals in some states. The way this has worked state to state has been varied, and is symptomatic of some states’ hesitancy to allow marriage if there’s a chance it can be prevented once more at the court level.
Idaho, for example, had its marriage ban overturned — however, the 9th U.S. Circuit Court of Appeals ruled that marriages would not be allowed until a decision had been made on whether or not to appeal the case. Compared to Oregon, where no government entity was desirous of an appeal and the National Organization for Marriage, which tried, was rejected, Idaho’s governor hopes to appeal the decision. Pennsylvania saw a federal judge strike down its ban on same-sex marriage Tuesday, and the district judge, John Jones, had no such qualms about allowing marriages. Judge Jones ordered that all could marry immediately. “By virtue of this ruling, same-sex couples who seek to marry in Pennsylvania may do so, and already married same-sex couples will be recognized as such in the Commonwealth,” he said, according to CNN.
In this way, it’s clear that a big part of state cases have to do with the politics within the state government. For example, state attorney generals. “If I were attorney general in Kansas in 1953, I would not have defended a Kansas statute that put in place separate-but-equal facilities,” said Attorney General Eric Holder, advising his state counterparts on whether or not they could choose not to defend marriage bans in their states. Those states with more conservative attorney generals have been considerably more likely to defend their state bans, such as attorney general J.B. Van Hollen (R-Wis.), compared to states like Oregon where bans have gone undefended by the state.
As an empowerment of the state, this is exactly as it should be. That said, there is something truly unjust about state partisanship or bigotry preventing some state couples enjoying equal rights, while others are lucky enough to reside in a state with more LGBTQ friendly politics, especially as the laws regarding how marriage benefits translate over state borders are somewhat unclear. “It’s not clear. The federal agencies are going to have to decide, and different agencies may decide differently. Congress could always step in, and eventually you’re going to have federal court ruling. There may be additional protection from certain federal agencies, but it’s not clear at this point which ones or when,” said Neil Siegel, law professor at Duke, to CNN.
What it comes down to in the end is not an issue of fairness or morality, but whether this is a state’s rights situation, or a case for equal rights and protection under the constitution, with marriage bans across the U.S. all violating the constitution; because law isn’t purely a moral beast, legal precedence is key in many instances. In cases where the law is more fluid and interpretable, however, it becomes a more political one, which is why 18 states have legal same-sex marriage and 32 states still have a ban in place — though some are in the process of overturning it or considering appeals.
For proponents of equal rights, there’s good news on that front polling wise. According to a Gallup poll published Wednesday, a new height of public opinion favors same-sex marriage. Back in 1996, there were 68 percent of respondents stating they believed same-sex marriage should not be valid, with only 27 percent saying the opposite. In 2014, 55 percent say same-sex marriages should be valid and provided with the same rights as heterosexual marriages. The first state legalized same-sex marriage in 2004, when pro-same-sex-marriage opinion reached 42 percent. Unsurprisingly, it is the younger generations that are supporting same-sex marriage legalization with the highest numbers, with 78 percent of 18 to 29 year olds in favor, 54 percent of 20 to 49 year olds, 48 percent of 50 to 64 year olds, and 42 percent of those individuals 65 years and up — though Gallup notes that more in all age groups support equal rights to marry than in 1996. The partisan split is also clear. As of last year, only 26 percent of Republicans were in favor of same-sex marriage being legal, while 58 percent of Independents were in favor and 69 percent of Democrats were in favor — a split that is certainly apparent in some states’ handling of the marriage ban compared to others.
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