By Craig J. Konnoth, Legal Research Fellow, The Williams Institute, UCLA School of Law. Mr. Konnoth's views are his own, and not those of any institutions or activities in which he is involved.
New York marks the fifth state in a row in which marriage equality has been achieved legislatively rather than through state court intervention: soon after Varnum v. Brien in Iowa, Vermont, New Hampshire, Maine and the District of Columbia all passed marriage recognition bills for same-sex couples legislatively (though Maine’s law was later overturned by voter referendum). This is part of a pattern: since Iowa, all other relationship recognition victories have been legislative: Rhode Island, Hawaii, Illinois and Delaware passed civil union laws; Washington, Wisconsin, and Nevada recognized domestic partnerships, and Colorado passed a designated beneficiaries bill. The only court victory on state recognition of same-sex marriage has been federal, with a district court striking down Proposition 8 in California. Contrast with early victories which were all court based – including marriage in Hawaii in 1993 (repealed by referendum) and Massachusetts (2003) and civil unions (Vermont), or events leading up to Iowa when the supreme courts of Connecticut and California also recognized marriage rights in quick succession.
The issue is not that court-based strategies are important, as some commentators have argued. There have been numerous high-profile developments regarding marriage rights in the federal arena, including in immigration, bankruptcy, district and appellate courts. Yet these concern federal laws and benefits that spouses enjoy in the areas of bankruptcy, immigration, and taxation, and thus differ from the Proposition 8 litigation. However, is the battle for state marriage rights in state courts over?
The answer depends on how broadly you define the struggle for marriage equality. If one is simply talking about going to state court, and filing suit for the right to marry under the state constitution, the answer, I would argue, is probably “yes.” As of today, thirty states have banned marriage recognition by state constitutional amendment. In the remaining twenty states, six already recognize marriage rights. The remaining fourteen states include three states in which the supreme courts have already rejected challenges (Washington, New Jersey, Maryland, though activists recently re-filed in New Jersey, a possible exception), four other states (Wyoming, Minnesota, Indiana and Rhode Island) in which courts are Republican dominated (or dominated by Republican appointees –hardly an exact predictor of judicial voting patterns, but not an insignificant one either), and in another state, Maine, voters rejected marriage equality at the ballot, possibly making a court wary of going the other way on the issue. Finally, Minnesota and North Carolina seek to pass constitutional amendments banning marriage equality. The five remaining states, Pennsylvania, West Virginia, Delaware, New Mexico and Illinois, are not necessarily the best candidates for litigation, when the other options are also considered. Thus, in short, victories in these types of cases will be fewer and further between: the most promising litigation, I would argue, has already been filed.
State courts still have an important role to play, because marriage equality victories have all been gradual. First, state courts may lay the ground in important ways for federal litigation. The federal district court’s opinion in the Proposition 8 case is the perfect example of this fact. The court looked to California law regarding gay and lesbian parents, shaped in substantial part by the California Supreme Court. Judge Walker in that case noted that given its parenting law, California could not claim a policy that promoted child rearing by straight couples as the rational basis for denying marriage rights to gay and lesbian couples. Indeed, just this week, gay advocates petitioned the United States Supreme Court to review a Fifth Circuit decision to refuse to recognize an out-of-state adoption by a same-sex couple. (While this is an important Full Faith and Credit case, and will be taught in many federal courts classes this year, public policy concerns regarding same-sex adoption in Louisiana are at stake as well.) Thus, by closing the gap between gay and straight families, state courts may play a vital role in debunking claims that public policy requires distinctions between straight and gay relationships.
State supreme courts may also play a vital role in distinguishing between permissible and impermissible forms of relationship recognition. For example, seventeen states ban marriage and civil unions. However, the Wisconsin Supreme Court recently declined at this time to review a lower court decision that Wisconsin’s domestic partnership law is not prohibited under this provision. This allows activists to continue to engage in an incremental strategy to develop marriage equality recognition.
Thus, while state courts may no longer be in the vanguard of marriage litigation, it does not mean that they are no longer on the battlefield. Changing hearts and minds is a process that involves all branches of the American polity – and even as the movement for marriage equality ventures into new arenas, it will not forget the forums in which it won its first victories.