On March 26, 2003, a lawyer stood in front of the nine Justices on the Supreme Court and argued that states should not be allowed to criminally prosecute gay and lesbian people for engaging in sexual activity. At the time, 14 states still had laws on the books that made “homosexual conduct” a crime. Flash forward exactly ten years later, and the Court was considering whether Proposition 8, (barring gay couples from marrying in California) violates the Equal Protection clause of the Constitution. What a difference a decade makes.
To say our country has undergone a rapid transformation on the issue of marriage for gay couples is an understatement. The speed and breadth of this evolution have shocked even the most optimistic advocates. Just in the past two weeks, a cascade of Senators from purple and red states have added their voices to the chorus of marriage supporters, including Rockefeller, Kaine, Tester, McCaskill, Portman, Warner, and Hagan at last count. And this week’s Supreme Court arguments were another landmark moment for the cause.
Because this progress has come at such an astonishing clip, it is understandable that many had hoped the Supreme Court would take this opportunity to issue a broad decision that acknowledged a Constitutional right for gay couples to marry nationwide. After this week’s oral arguments, that outcome seems unlikely. But that reality should not be seen as a setback — rather, it is an opportunity to continue our nation’s swift journey toward full acceptance of gay and lesbian couples.
This week the Supreme Court will take up two historic cases dealing with marriage for gay couples. We made a cheat sheet breaking down what you need to know about each of the cases, including a easy-to-read charts that will help clarify the many possible outcomes as the Justices ponder their decisions.
The quasi-triumphant coverage of this week’s Supreme Court oral arguments in cases related to marriage equality is making me uncomfortable. Not because I don’t want the high court to rule in a way that upholds the dignity and equal protection of same-sex couples who are or want to be married, but because I don’t think lesbian, gay, bisexual and transgender (LGBT) Americans fully appreciate just how tenuous things are on the court right now. The undeniable forward momentum propelling today’s hopeful enthusiasm could be the very thing that keeps the Supreme Court from going big.
The arguments in Hollingsworth v. Perry (a.k.a. the Prop 8 case) and United States v. Windsor (a.k.a. the DOMA case) mark the high point of the startling transformation in public opinion in a relatively short period of time. When President Obama took office in 2009, same-sex marriage was legal only in Massachusetts (where it was approved in 2004) and Connecticut (2008). Today, marriage equality reigns in nine states and the District of Columbia. Three of them (Maine, Maryland and Washington state) said, “I do,” last November.
This is happening in tandem with an incredible swing in public opinion. In 2003, 55 percent of the American people were against same-sex marriage in the Washington Post-ABC News poll taken at the time. Last week, a new Post-ABC News poll revealed 58 percent support for marriage equality. That’s a complete flip in public opinion and marks the highest level of support ever.
All of this is fantastic. And it could lead the Supreme Court to decide to take a back seat to a political process moving in the right direction.
Marriage in the Supreme Court: What Could Happen? (Hollingsworth v. Perry)
The Supreme Court has announced that it will hear two cases this term involving marriage for gay couples. This chart explains some possible outcomes for the case that challenges California’s Proposition 8: Hollingsworth v. Perry. The Court will likely hear oral arguments next week and will render a decision by the end of June 2013.
Marriage in the Supreme Court: What Could Happen? (United States v. Windsor)
The Supreme Court has announced that it will hear two cases this term involving marriage for gay couples. This chart explains some possible outcomes for the case that challenges the Defense of Marriage Act (DOMA): United States v. Windsor. The Court will likely hear oral arguments next week and will render a decision by the end of June 2013.
The Supreme Court announced Friday that it will take on two cases involving same-sex marriage. This is definitely cause for celebration. Gay couples looking for the respect and stability that comes with marriage might finally get equal protection under the law. But as Adam Nagourney of the New York Times reported yesterday, “[A]mid the celebration, there were signs of concern over how the Supreme Court might rule.”
Don Romesburg, an associate professor of women and gender studies at California’s Sonoma State University who is gay, told Nagourney, “It is frightening to have our basic rights as citizens in the hands of just nine people, when four or five of them are deeply ambivalent, at best, about our very existence.”
Yet, over the years, we have seen the overall views of the American people move at breakneck speed from “deeply ambivalent” to growing acceptance.
The Pew Forum on Religion and Public life released a series of charts last month that bear this out.
Attitudes are changing. Between 2001 and 2012, support for same-sex marriage rose 13 percent, from 35 percent to 48 percent. The number of those opposed dropped 14 percent, from 57 percent in 2001 to 43 percent in 2012.
On “This Week With George Stephanopoulos” yesterday, George Will said, “Quite literally, the opposition to gay marriage is dying.” That’s because those most opposed to marriage equality are older Americans, the “Silent Generation.” But as you see in the chart above, support for same-sex marriage has been increasing among every generation of Americans. The Millennials and Generation X’ers are leading the way. But a report from the centrist think tank Third Way convincingly challenges the conventional wisdom espoused by Will.
“One often-cited reason for the change is that younger voters with more accepting views are replacing older voters in the population,” Lanae Erickson of Third Way and Gregory B. Lewis of Georgia State University write. “The more important reason, though, is that Americans in every demographic, political, and religious group across the country are changing their minds on this issue.”
Now we wait to see who among the justices of the Supreme Court will change their minds on this issue to give gay and lesbian couples the recognition and protection their families deserve under the Constitution.
President Obama has a second term to address major issues, including immigration, the fiscal cliff and health care. But with Congress still divided, compromise and cooperation may remain elusive. Watch PBS’s Gwen Ifill talk to Third Way’s John Cowan and The Wall Street Journal’s Naftali Bendavid on the reality for the next four years.
This weekend, for the first time in history, same-sex marriage will be debated in a party platform, as Democrats hold their first meetings to decide their official positions in advance of their fall convention.
Los Angeles Mayor and convention chair Antonio Villaraigosa and Democratic National Committee chair Debbie Wasserman Schulz have both said they expect marriage to be in the platform. Rep. Adam Schiff, D-Pasadena, got the entire California Democratic delegation on on board last week, including Sens. Dianne Feinstein and Barbara Boxer, who signed Freedom to Marry’s Democrats Say I Do petition.
The Democratic group Third Way issued a memo Friday morning showing that same-sex marriage has reached a tipping point following President Obama’s final evolution in support earlier this year. With Gallup showing 65 percent of Democrats in favor and Pew showing a 10-point surge in support since 2008, the memo said more Democrats support same-sex marriage than consider themselves pro-choice.
The memo predicted six “marriage moments” over the coming year, with the Dem platform being the first. The rest are, an expected Supreme Court decision, probably in October, just before the election, to hear at least one marriage case, possibly including California’s Prop 8, led by the Ted Olson/David Bois team. In November, voters in four states — Washington, Maine, Maryland and Minnesota — will vote on marriage initiatives. In February, the Supreme Court could hear arguments on the Defense of Marriage Act. In the spring, the group predicts more state legislatures, possibly in New Jersey, Rhode Island and Illinois, could approve same-sex marriage. By June, the group predicts a Supreme Court decision.
Former Clinton aide Richard Socarides speculates on how Chief Justice John Roberts might rule on DOMA in the wake of his deciding vote to uphold Obamacare. Socarides thinks Roberts could side with marriage, given his youth and his concern about his legacy.
“The question is whether a decade or more from now Chief Justice Roberts really wants to be leading a Court that embodies the last vestiges of anti-gay discrimination in the country, even as fewer and fewer Americans oppose equality,” Socarides wrote. “A ruling in favor of gay equality is possible, perhaps even likely, with or without the swing vote of Justice Kennedy.”
Infographic by Third Way. Available for download via Flickr.
When the gavel bangs down this month and the Supreme Court issues their decision on health care reform, there will be a split second before the tsunami of reaction. Everyone will collectively be thinking… what now?
In this memo, Third Way’s Senior Fellow for Health and Fiscal Policy, David Kendall, offers advice to supporters of the landmark Affordable Care Act about reacting to the decision under three scenarios: a favorable ruling upholding the law, an unfavorable ruling striking down much of it, and a ruling striking down the individual mandate only.
No matter how the court rules, we argue that supporters of the Affordable Care Act must use this moment to go to back to basics and explain to people what they are getting in this bill—or what they are losing.