Private: Marriage Equality Advances, as Justices Ponder Cases

by Jeremy Leaming

As the U.S. Supreme Court tries to figure out how it will handle California’s anti-equality law, Proposition 8, and the federal government’s equally noxious Defense of Marriage Act, a number of progressive-leaning states are moving forward on expanding liberty.

Last week Rhode Island become the 10th state to enact legislation allowing same-sex couples to wed and it appears Minnesota and Delaware may be closely following suit. Before the Rhode Island legislature gave final approval of the marriage equality measure R.I. Gov. Lincoln D. Chafee (I), celebrated the impending law, saying, “We will be open for business, and we will once again affirm our legacy as a place that is tolerant and appreciative of diversity.”

The Minnesota House has scheduled a vote for this week on a marriage equality bill, the Pioneer Press reports. The newspaper reports that the House speaker has determined he has the requisite votes to pass the measure and send it to the Senate, where its leaders say they are confident they have the votes to approve it. Gov. Mark Dayton said he would sign the marriage equality bill into law.  

Delaware lawmakers are also on the verge of advancing equality. The state House has already passed a bill recognizing same-sex marriage and the Senate, the Associated Press reports, is preparing to vote today on the measure. The AP also notes the state’s Democratic Gov. Jack Markell has “promised to sign the measure ….”

While marriage equality is hardly the capstone of LGBT equality, it is nonetheless an important part of the efforts to achieve equality under the law. (In this post, it’s noted that federal lawmakers are pushing other measures to protect LGBT people in the workforce and LGBT military families.)

The states moving to end discrimination against same-sex couples – at least in the arena of granting marriage licenses and state benefits that come with legally recognized unions – provide a strong argument for federalism. That is, many argue – including some pro-equality individuals and groups – that states are moving along to recognize same-sex marriage and there is no reason for the Supreme Court to upset the process by, say, finding that states refusing to recognize same-sex marriage are violating the equal rights of lesbians and gay couples.

The incrementalist approach, however, may leave marriage equality unfulfilled in large swaths of the nation for many, many years to come. Does anyone believe that Mississippi, Texas or Louisiana for instance is going to following the actions of Rhode Island anytime soon? That’s why many other individuals and groups argued that the Supreme Court take a broader approach, possibly in the Proposition 8 case, to rule that laws discriminating against LGBT persons should be subject to a heightened scrutiny – meaning, essentially, that the government needs to have a really strong reason for enforcing the discriminatory law.

Longtime Supreme Court correspondent Linda Greenhouse wrote not long after oral argument in both cases that invalidating the so-called Defense of Marriage Act on only federalism grounds would not provide a resounding call for equality. “A ruling,” Greenhouse wrote, “that left the states to their own devices when it comes to marriage would take the equal protection guarantee out of the picture. It would, of course, provide the full benefits of marriage to those living in states that chose to recognize same-sex marriage. But it would snatch away the promise for those living elsewhere, particularly if the decision was based not only on the asserted absence of federal authority but on exaggerated notions of state sovereignty anchored in the Tea Party’s favorite constitutional amendment, the 10th.”

In a March 26 blog post, it was also noted that a narrow ruling in the Proposition 8 case would likely mean that “many states” would continue for many years to come to treat same-sex couples as unworthy of marriage. It’s moving that lawmakers in some states recognize the beauty of diversity and cherish equality, but history shows that often too many lawmakers and people are content to stick with the status quo, no matter how ignoble.

Constitutional Interpretation, Equality and Liberty, LGBTQ Equality, Supreme Court