One year later, at the end of 2013, that number had leaped forward to 17, plus D.C. In addition, a federal judge ruled in 2013 that Utah's ban on same-sex marriage violated the U.S. Constitution. It is on appeal and, if upheld would make 18, plus. C.
Adding up the state populations of those 18, plus D.C., puts the proportion of U. S. citizens who now live in jurisdictions that guarantee marriage equality at 39%.
But already in 2014, we have three other states in the same category as Utah: Oklahoma, Kentucky, and Virginia, where a federal judge has over-turned a state law, but that ruling is stayed pending further ruling by Appeals Courts.
Beyond the statistics, this is important: The 2013 U. S. Supreme Court decision in the Windsor case ruled DOMA to be in violation of the U. S. Constitution. Justice Anthony Kennedy's majority opinion was a bit ambiguous (perhaps intentionally so) in its basis both in federalism and equal protection. In effect he wrote that states with different laws regarding marriage resulted in inequality of protection of rights and liberty.
Most people assumed that it was the federalism aspect that would be used in future cases; but in the subsequent rulings -- in Utah, Oklahoma, Kentucky, and just a few days ago Virginia -- the federal judges have used the equal protection justification as their basis for over-turning state laws. This is a more sweeping violation of personal rights basis and likely to lead more quickly to all states' laws falling.
It will be interesting to see how this plays out as the cases move upward through the Appeals Court -- and ultimately far faster than anticipated -- back to SCOTUS. At that point, there will probably be a sweeping decision that will invalidate any and all state laws that ban same-sex marriage.
Ralph
PS: If UT, OK, KY, and VA are upheld on appeal, then 44.5% of the population will live in marriage equality jurisdictions -- getting pretty close to the magic 50% mark. Add to that the public's attitude now consistently being over 50% and the final equality can't be far off.
An interesting sidelight of these recent developments is that Justice Scalia is being ironically credited with giving the language to point to these decisions.
ReplyDeleteIn his scathing dissents of 2003 (Lawrence v Texas) and 2013 (Windsor) he predicted that the legal basis used for these decisions would inevitably lead to legalizing gay marriage.
The judge who ruled on the Virigina case actually referred to this, saying that "when core civil rights are at stake, the judiciary must act." The judge chose this basis, rather than the part the paid deference to states' rights in regulating marriage.