Same-Sex Marriage May Hinge On Supreme Court

With New York’s legalization of same-sex marriage effectively doubling the number of Americans living in states where gays can marry, gay advocates like to say 2011 was a big year.

It’s hard to imagine another doubling this year, but proponents are still hoping to build on last year’s success. Same-sex marriage is currently legal in six states plus Washington, D.C., and it may come up for a vote in six more. All the while, legal challenges are pushing the issue closer to getting an opinion from the U.S. Supreme Court.

Marc Solomon of Freedom to Marry says the fact that New York passed gay marriage with bipartisan support bodes well for bills coming up this year in Maryland, New Jersey and Washington state, where even some lawmakers who opposed it a few years ago are now in favor.

“We haven’t hit a tipping point, but we’ve certainly hit a turning point,” Solomon says. “We’re seeing a really dramatic shift. I think the trend, the accelerating trend, is very clear.”

Putting It To The Voters

That trend could be tested in Washington and Maryland, where voters will almost certainly get the last word on same-sex marriage through a ballot question. New Jersey Gov. Chris Christie said Tuesday that he’d like to see a popular referendum in his state, too. Gay marriage shouldn’t be decided, he said, by 121 people in the Capitol.

That could mean good news for opponents, who like to point out that gay marriage only passes when it’s imposed by what they refer to as activist judges or out-of-touch lawmakers. It has, after all, lost each of the 31 times it’s been put directly to voters.

But Solomon insists that could soon change. This week, Maine advocates will announce whether they’ll try to become the first state to enact same-sex marriage through popular referendum.

“We think 2012 is going to be the year that we actually win a state at the ballot and take away, really, our opponents’ last good talking point that they have on this matter,” Solomon says.

Pastor Bob Emrich begs to differ. He led the fight for Maine’s ballot veto of same-sex marriage in 2009.

“Even if they won in Maine,” he says, “the score would be, what? Thirty-one to one?”

Besides, Emrich says, if it came to another vote this year, opponents would be even better prepared to defeat it than they were in 2009: They’d refute arguments that opposition is based on bigotry and make their case that gay marriage impinges on religious liberties.

“They try to make everybody feel like, ‘Oh, you don’t have to do anything that’s contrary to your religious beliefs,’ ” Emrich says, “but it’s not true. I mean, there are cases all over the country where that sort of thing is already taking place.”

Supporters call that a red herring, saying it’s anti-discrimination and public accommodation laws that govern whether same-sex couples can, for example, adopt or rent a social hall — not marriage legislation.

The Game-Changers

That will all be part of the fight in three other states where same-sex marriage is on the agenda this year. Voters in Minnesota and North Carolina will consider a constitutional ban on same-sex marriage, while lawmakers in New Hampshire — a state where same-sex marriage has been legal for two years now — are considering a repeal.

Sarah Warbelow of the Human Rights Campaign says that a repeal would set a nasty precedent — but there is a way for same-sex marriage to lose a battle and still win the war.

“I don’t think it’s make it or break t,” she says. “Winning one of these certainly would be nice, but losing isn’t going to stop the change in American opinion.”

A game-changer could come in the form of a couple of decisions from the U.S. Supreme Court, which may soon rule on California’s Proposition 8 ban on same-sex marriage and on a challenge to the federal Defense of Marriage Act, which binds government to only recognize marriages between a man and a woman.

Brian Brown of the National Organization for Marriage says what states do now could influence the court’s decisions.

“Given that we have a Roe v. Wade-type decision, the state fights become even more important because some of the justices don’t like to have the law be too far ahead of where the public is,” Brown says.

But even a Supreme Court decision is unlikely to end the debate. If the justices find same-sex marriage bans to be unconstitutional, opponents say they’ll just redouble their efforts to amend the U.S. Constitution.