Equality on the march [Editorial]

The watershed years in the fight for marriage equality have been coming in rapid succession: 2012 marked the first victories for same-sex marriage at the ballot box in Maryland, Maine and Washington, and 2013 was the year that the Supreme Court struck down a key provision of the Defense of Marriage Act, paving the way for federal recognition of married gay couples. Five state legislatures authorized same-sex marriages last year, and in three more states, courts intervened to invalidate laws restricting marriages to those between a man and a woman.

The last of those decisions is the most significant, both because of where it occurred and how it came about. On Dec. 20, federal District Judge Robert J. Shelby ruled that Utah's voter-approved constitutional amendment barring gay marriages violated the U.S. Constitution's guarantee of due process and equal protection under the law. Since then, hundreds of same-sex couples have wed in one of the most socially and politically conservative states in the nation, and the case appears to be on the fast track to the Supreme Court, where the justices might be hard pressed to avoid ruling on the central question of whether gays have a constitutional right to marry.


This year may not be the one when the high court establishes marriage equality nationwide, but that's only because of the dictates of the calendar, not the merits of the issue. As Judge Shelby's ruling makes clear, the logical conclusion of this debate is inescapable.

Judge Shelby's ruling has gotten particular attention for the way it quotes approvingly of Supreme Court Justice Antonin Scalia's dissents in two watershed gay rights cases. Judge Shelby cited Justice Scalia's warnings from the dissents in Lawrence v. Texas (the case that overturned laws against consensual gay sex) and U.S. v. Windsor (the case that brought down part of the Defense of Marriage Act) that the decisions would eventually box the court into recognizing a constitutional right to same-sex marriage. Some commentators have criticized Judge Shelby for this, effectively saying he's thumbing his nose at Justice Scalia, and the state of Utah is arguing in its appeal that he is improperly relying on it.


Neither is the case. Justice Scalia may have been alarmed by the fact, but he is correct that implicit recognition by the court of homosexuality as something deserving of constitutional protection and not something that can rationally be disfavored by the state leads to the conclusion that same-sex couples must have the right to marry under the Constitution. After all, if the majority of the court believes, as Justice Anthony Kennedy wrote in the Windsor decision, "DOMA's principal effect is to identify a subset of state-sanctioned marriages and make them unequal," does it not follow that laws making a subset of people unequal in regard to their right to marry is similarly unconstitutional?

Utah's failed effort to get Judge Shelby or the 10th Circuit Court of Appeals to issue a stay to prevent same-sex marriages from taking place until the case is finally settled is instructive of the barriers opponents of marriage equality face in trying to overturn it. Among the legal tests the state failed to pass in its request for a stay was a demonstration that allowing marriages to proceed in the meantime would cause irreparable harm. The only specific potential harm the state cited was the possibility that, if the decision is later overturned, those who married in the meantime would find themselves in legal limbo. Implicit in that argument, though, is the notion that banning same-sex marriages is causing those couples harm, and that granting them causes no specific injury to anyone else. And that is no mere theoretical conclusion; a decade of marriage equality in Massachusetts with no deleterious effects makes it impossible to prove otherwise.

If the Supreme Court somehow avoids a ruling on whether there is a constitutional right to same-sex marriage in the Utah case, another recent ruling out of Ohio provides an alternative route to de facto nationwide recognition of marriage equality. In that case, James Obergefell and John Arthur, a gay couple from Ohio flew to Maryland and were legally married on the tarmac at Baltimore Washington International Airport because Arthur had Lou Gehrig's disease. When Arthur died in October, Mr. Obergefell asked that he be listed as a spouse on the death certificate. Federal Judge Timothy S. Black ruled that since Ohio has always recognized other states' marriages as valid (as all states do), it could not refuse to do so in the case of a same-sex couple. If that logic prevails, state-level debates about gay marriage become very different. It's not a question of whether Ohio (or Indiana, or Texas, or wherever) has gay marriage but whether that state's gay couples hold destination weddings in one of the 18 states where such nuptials are allowed.

The day will come when marriage equality is recognized in every state, and we will be a more perfect union as a result. Whether or not that day comes in 2014, it will come.

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