Legalization of same-sex marriage

[pbrower2a]

Such was the status of same-sex marriage at the logical break point, the summer before the 2014 election. No state would have any initiative or referendum that risked legalizing same-sex marriage. State legislatures would not do so in such states as Michigan, Ohio, or Wisconsin, socially-liberal states in which such might have passed.

In any event, the midterm election of 2014 would prove an unmitigated disaster for any liberal trends in America as the Republican Party increased its majority in the House of Representatives and gained an absolute majority in the US Senate. Such might have seemed the end of any further advances of same-sex marriage until at least 2016.

This looks like a turning point because from then on no state was likely to ever legalize SSM through finding SSM bans violations of the state (or district) constitution, enactment through legislation, or initiative or referendum.  There would be no initiatives or referendums on SSM in the general election of 2014.     



Method of legalization of SSM

resulting from a state court decision invalidating an SSM ban
resulting from state legislation
resulting from the decision of the DC Council
resulting from a statewide initiative or referendum
resulting from a decision by the US Supreme Court
resulting from a decision by a federal court subsidiary to the US Supreme Court

Here is how polling went on approval or disapproval of same-sex marriage within a month of Election 2014. On this map red means greater public disapproval than approval; yellow indicates equal approval and disapproval; green means stronger approval than disapproval. Intensity indicates the strength of net approval or disapproval. Had some state legislatures had the willingness to put same-sex marriage on the ballot for a choice of voters, then some of those states would have become legally permissive of same-sex marriage.

     

YouGov polling map with appropriate modifications as of 6AM EST, 6 October 2014:


For support and legality of same-sex marriage.

White -- same-sex marriage legal or has at the least been enacted. No further distinction.

Green -- same-sex marriage not legal, but more popular than unpopular or plurality support for legalization of SSM

65% or higher -- deep green (90% saturation)
60.0 - 64.9%  -- dark green  (70% saturation)
55.0 - 59.9%  -- medium green (50% saturation)
50.0 - 54.6% --  light green (30% saturation)
below 50% but positive -- aqua (20% saturation)

tie -- yellow

above 45.0% but negative -- hot pink (30% saturation)
40.0 - 44.9% -- medium red (50% saturation)
35.0 - 39.9%  -- ruby (60% saturation)
30.0 - 34.9%  -- maroon (70% saturation)
under 30% -- deep red  (90% saturation)


Relevant to some states, appeals of decisions in lower federal courts were going to or had gone to circuit courts, the circuit courts being the last before the US Supreme Court. Only one set state of state laws (those of California) had gone to the US Supreme Court. One might have assumed that the Supreme Court simply discovered specific faults in the legislation.


States in white (and DC) already had legalized same-sex marriages. Other states are coded by district in those in which SSM was not permanently legalized as of 6AM EST on 6 October 2014:







Status of SSM in Puerto Rico, the US Virgin Islands, American Samoa, Guam, or the Northern Marianas not shown.

4th circuit*
5th circuit
6th circuit*
7th circuit*
8th circuit
9th circuit*
10th circuit*
11th circuit

*Next appeal, US Supreme court.

Colors have no political significance.

DC and all states within the 1st, 2nd, and 3rd circuit courts have legalized SSM.
Yellow -- toss-up.

The next player in the drama -- the US Supreme Court -- would be decisive.

At this point, all the states with same-sex marriage were liberal enough in Presidential voting that all had voted five or six times for the Democratic nominee for President.

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Between June and September, SSM is still limited to nineteen states and the District of Columbia. But some Federal Circuit Courts struck down some state statues banning SSM, at times showing the speciousness of the claim that bans on SSM did some social good and no harm. States invariably appealed.

From August 2014, involving an amendment to the state Constitution (Wisconsin) and a state law (Indiana):

CHICAGO (AP) — Federal appeals judges bristled on Tuesday at arguments defending gay marriage bans in Indiana and Wisconsin, with one Republican appointee comparing them to now-defunct laws that once outlawed weddings between blacks and whites.

As the legal skirmish in the United States over same-sex marriage shifted to the three-judge panel of the 7th U.S. Circuit Court of Appeals in Chicago, more than 200 people lined up hours before to ensure they got a seat at the much-anticipated hearing.

While judges often play devil's advocate during oral arguments, the panel's often-blistering questions for the defenders of the same-sex marriage bans could be a signal the laws may be in trouble — at least at this step in the legal process.
The states involved are Wisconsin (an amendment to the State Constitution) and Indiana (a simpler state law). Other states in the 7th District already have legalized same-sex marriage.

Richard Posner, who was appointed by President Ronald Reagan in 1981, hit the backers of the ban the hardest. He balked when Wisconsin Assistant Attorney General Timothy Samuelson repeatedly pointed to "tradition" as the underlying justification for barring gay marriage.

"It was tradition to not allow blacks and whites to marry — a tradition that got swept away," the 75-year-old judge said. Prohibition of same sex marriage, Posner to the Wisconsin attorney, derives from "a tradition of hate ... and savage discrimination" of homosexuals.


Posner ...frequently cut off Indiana Solicitor General Thomas Fisher, just moments into his presentation and chided him to answer his questions.

At one point, Posner ran through a list of psychological strains of unmarried same-sex couples, including their children having to struggle to grasp why their schoolmates' parents were married and theirs weren't.

"What horrible stuff," Posner said. What benefits to society in barring gay marriage, he asked, outweighs that kind of harm to children?

"All this is a reflection of biology," Fisher answered. "Men and women make babies, same-sex couples do not... we have to have a mechanism to regulate that, and marriage is that mechanism."

Samuelson echoed that, telling the hearing that regulating marriage — including by encouraging men and women to marry — was part of a concerted Wisconsin policy to reduce numbers of children born out of wedlock.

"I assume you know how that has been working out in practice?" Judge David Hamilton responded, citing figures that births to single women from 1990 to 2009 rose 53 percent in Wisconsin and 68 percent in Indiana.
Brutal questions, but necessary ones. This addresses the question "What about the children?" Questioning of the side for SSM is similarly harsh:

While the judges seemed to push defenders of the bans the hardest, they also pressed the side arguing for gay marriage about just where they themselves would draw the line about who could and couldn't marry.

Would they argue in favor of polygamy on similar grounds, pointing to the emotional toll on children in families with multiple mothers or fathers, asked Judge David Hamilton, a President Barack Obama appointee.

"If you have two people, it's going to look like a marriage," said Kenneth Falk of the American Civil Liberties Union of Indiana. "If you have three or four, it doesn't. ... There's no slippery slope."


http://www.huffingtonpost.com/2014/0...n_5718423.html

Tough question, well answered. Bingo. People are not going to get away with polygamy, marrying their cars or dogs, etc. SSM would win on its merits. The arguments against same-sex marriage now looked specious in the extreme.


On October 6 and 7, the US Supreme Court applied the hammer to some of the appeals of lower-court decisions mandating the legalization of SSM in the following states:
Colorado
Indiana
Nevada
North Carolina
Oklahoma
Utah
Virginia
West Virginia
Wisconsin

At this point I could have predicted with some confidence that no further state would abolish bans on SSM due to decisions of a state court, through legislation, or through initiative or referendum.      



From here on I can show two groups of states (the District of Columbia is of course in the first group): those with legal and permanent SSM statewide by law before the May-September gap and those that enact it later.

I will no longer show states by their 'rank' in ending up with SSM. It may be that those states that most fervently resisted SSM that ended up getting their SSM bans judged more quickly in the federal appellate courts. Hereon, colors other than white indicate the month in which SSM bans give way to recognize new licensing of SSM.  

As of November 1, 2014, one can add in sky blue those states that got legal SSM imposed, all ultimately due to decisions of the US Supreme Court.


To the surprise of many, Missouri gets SSM as the result of a decision by a State court early in November. So do Kansas, Montana, and South Carolina later in the month as appeals of lower-court rulings are appealed all the way to the Supreme Court. Those states are in aqua.
   



States with full legalization of SSM as of 1 May, 2014 (white)
States getting full legalization of SSM in October 2014
States getting full legalization of SSM in November 2014

Method of legalization of SSM:  



Method of legalization of SSM

resulting from a state court decision invalidating an SSM ban
resulting from state legislation
resulting from the decision of the DC Council
resulting from a statewide initiative or referendum
resulting from a decision by the US Supreme Court
resulting from a decision by a federal court subsidiary to the US Supreme Court

Unpopularity of same-sex marriage is no longer relevant to what states have it or don't.

So things are at the end of 2014.

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Two cases would appear big in January 2015. One involved Florida, then the second-largest state in population not to allow same-sex marriage. Michigan would be required  to honor marriage certificates for same-sex couples from a short time in which such marriage was licit.

A federal court invalidated Alabama's statewide ban on same-sex marriage in February.