Legalization of same-sex marriage

[pbrower2a]

I'm mixing some threads here to create a lesson, basically on how an important  civil right (same-sex marriage) could come into being. Some are from the old Fourth Turning forms, and some are from Leip's "Election Atlas". Here I can do this without the banter characteristic of a Forum. This may be good for a civics lesson.

Let's start with the most amazing reality: this has happened while America has become more, and not less, sexually repressive, especially of domestic violence (which is not a right) and even more, the abominable deeds that we can all classify as sexual abuse of children. We are in the worst time ever to be involved in child pornography, a reality that almost everyone finds acceptable. This is also in a time, part of which reflects the rise of the Tea Party movement which melds every thread of religious and economic conservatism. Know well: gays and lesbians wanted to find their way into the mainstream of American life, and they did a good job of it. They distanced themselves as fully as straights from the infamous NAMBLA types. The less said about NAMBLA the better.

Same-sex couples have ended up with children; just like heterosexual couples they can be just as protective of those children as heterosexuals. Two gay men or two lesbians could be very hostile to any pervert showing an inappropriate interest in the child in their custody. Sexual exploitation of children is perversion; homosexuality isn't.

...Before anyone asks me what my stake is -- it is law and order. Having been gay-bashed, I came quickly to the conclusion was that the problem wasn't that I wasn't masculine enough; it was instead that some people think it acceptable to beat people that they deem homosexual. Difference is real. Human rights must be the law of the land. I came to the conclusion that standing for homosexual rights would promote law and order, the first of all civil rights. I changed my tune on homosexuality. I used to make 'gay jokes'. I quite making them when I realized that those contributed, even if subtly, to the danger of gay-bashing.

So here is the legal status of same-sex marriage at the beginning of 2003:





Same-sex marriage was not recognized as a legal right anywhere in America.

Things changed on May 17, 2004 as the result of a state court ruling that the Massachusetts law against same-sex marriage violated the state constitution. But only in Massachusetts, then only the first state to legalize SSM.

Legalization of SSM to 2004




Legalization from previous years (white)

from legal decisions made that year and valid from that year:

resulting from a state court decision invalidating an SSM ban

From here on, a number upon a state indicates the order in which the state recognizes or is compelled to recognize the validity of same-same-sex marriage permanently.

Legalization of SSM to 2008



California briefly legalized SSM as its state Supreme Court invalidated Proposition 8 -- but such was appealed, and SSM quickly vanished. I'm not counting short-lived legalization. But Connecticut would by a ruling that an SSM ban was unconstitutional.

California briefly legalized SSM as its state Supreme Court invalidated Proposition 8 -- but such was appealed, and SSM quickly vanished. I'm not counting short-lived legalization. But Connecticut would by a ruling that an SSM ban was unconstitutional.



Legalization from previous years (white)

from legal decisions made that year and valid from that year:

resulting from a state court decision invalidating an SSM ban

Same-sex marriage would remain strictly a Massachusetts phenomenon until

California briefly legalized SSM as its state Supreme Court invalidated Proposition 8 -- but such was appealed, and SSM quickly vanished. I'm not counting short-lived legalization. But Connecticut would legalize same-sex marriage with a State Supreme Court ruling that an SSM ban was unconstitutional.



Legalization from previous years (white)

from legal decisions made that year and valid from that year:

resulting from a state court decision invalidating an SSM ban

It gets more interesting in 2009.

California briefly legalized SSM as its state Supreme Court invalidated Proposition 8 -- but such was appealed, and SSM quickly vanished. I'm not counting short-lived legalization. But Connecticut would by a ruling that an SSM ban was unconstitutional.




In a mere five days, Iowa (April 3, through a state court decision) and Vermont (April 7, through legislation) ratified same-sex marriage. In May, Maine legalized it through legislation, as would New Hampshire in June. But Maine would repeal the legislation in November, so that would not count in my scheme.

The Council of the District of Columbia would enact a law legalizing same-sex marriage in November -- but that would not take effect until 2010. DC will be shown when SSM becomes possible in 2010.

Legalization from previous years (white)

from legal decisions made that year and valid from that year:

resulting from a state court decision invalidating an SSM ban
resulting from state legislation

[pbrower2a]

As the result of a vote by the District of Columbia Council in 2009, SSM became lawful in March 2010. This is significant because if the Federal Government could not nullify SSM in the District of Columbia it could not nullify it as the decision of a State. States' rights would apparently protect states' legislation allowing SSM. But that is as far as things would go.

I mark DC with a 56 indicating that it is between the fifth and sixth states to recognize SSM by law.





Legalization from previous years (white)

from legal decisions made that year and valid from that year:

resulting from a state court decision invalidating an SSM ban
resulting from state legislation
resulting from the decision of the DC Council

Only one state would legalize SSM in 2011 -- but the state is New York State, effective on July 24 through legislation. Through this state legislation, more than twice as many people would get the right to participate in same-sex marriage without having to cross a state line.



(Ignore Maine and Nebraska districts).


Legalization from previous years (white)

from legal decisions made that year and valid from that year:

resulting from a state court decision invalidating an SSM ban
resulting from state legislation
resulting from the decision of the DC Council

2012:

In three states -- Maine, Maryland, and Washington -- same-sex marriage would be legalized through a popular initiative or referendum. Although the Maryland law would permit same-sex marriage on January 1, 2013, that is close enough for me to put the legalization in 2012. I'm giving the situation on January 1, 2013. Maine counts now due to permanence.





Legalization from previous years (white)

from legal decisions made that year and valid from that year:

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

Things accelerate in 2013.

Most significant, and not only for the number of people that it would affect, would be the end of a long legal process starting in 2008 involving California, the US Supreme Court deciding on June 26 that same-sex marriages would be legal in California with such marriages being resumed on June 28.

SSM became lawful and effective  in Delaware on July 1, in Rhode Island and Minnesota  on August 1, and Hawaii on through legislation on December 2. A state court validated SSM in New Jersey on October 21 and another in New Mexico so did on December 13.







Legalization from previous years (white)

from legal decisions made that year and valid from that year:

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

2014:

The Ninth District Court invalidated an SSM ban in Oregon on May 19. The federal appeals court for the Middle District of Pennsylvania invalidated the SSM ban of Pennsylvania the next day, and the Governor declined to appeal.     






For clarity -- "12T" applies to both Minnesota (easily visible) and Rhode Island (not so visible) indicating that same-sex marriage became possible on the same day.


Legalization from previous years (white)

from legal decisions made that year and valid from that year:

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

[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.

---

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.

[pbrower2a]

States with full legalization of SSM as of 1 May, 2014 (white)
[glow=lightblue,2,300]States getting full legalization of SSM in October 2014[/glow]
[glow=aqua,2,300]States getting full legalization of SSM in November 2014[/glow]
[glow=red,2,300]States getting full legalization of SSM in January 2015[/glow]
[glow=lightgreen,2,300]States getting full legalization of SSM in February 2015[/glow]

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

---

Obergfell vs. Hodges apparently settles the issue for all but some local resistance on June 26, 2015. It specifically invalidates outlawry of same-sex marriage in Michigan, Ohio, Kentucky, and Tennessee. Arkansas. Georgia, Nebraska, South Dakota, and North Dakota governments quickly accept that it applies to them too. After Louisiana and Mississippi, Texas is last, with piecemeal acceptance at first.

No further maps are needed. There is no appeal beyond the US Supreme Court -- not public opinion, not the President, not Congress, not the United Nations, not the angels, and not even God Almighty.

[pbrower2a]

Two years after Obergfell vs. Hodges,  we find this. Same-sex marriage is accepted as law.



https://www.prri.org/research/emerging-c...ues-atlas/

Broad, Growing Support for Same-Sex Marriage

Since the U.S. Supreme Court ruled in 2015 that same sex couples have a constitutional right to marry, support for same-sex marriage has increased substantially. Currently, more than six in ten (61%) Americans say gay and lesbian couples should be able to marry legally, while only about half as many (30%) are opposed.

Strength of support for same-sex marriage has increased dramatically over the past decade, while strength of opposition has fallen in nearly equal measure. Today, Americans who strongly favor same-sex marriage outnumber those who strongly oppose it by more than a two-to-one margin (30% vs. 14%). In 2007, only 13% of the public strongly favored same-sex marriage, while nearly one-quarter (24%) strongly opposed it.1 Much of this shift has occurred within the last five years. As recently as 2013, more than four in ten (42%) Americans opposed same-sex marriage, including about one in four (23%) who strongly opposed it.2 Over the last five years, strong supporters of same-sex marriage increased only modestly, from 25% to 30%.



Conservative Republican Holdouts


Partisan gaps in views of same-sex marriage persist, even as the public has become more supportive of the policy overall. Nearly three-quarters (73%) of Democrats and about two-thirds (66%) of independents favor same-sex marriage, compared to only 42% of Republicans. A slim majority (51%) of Republicans oppose same-sex marriage. However, opposition is mostly confined to conservative Republicans. Nearly six in ten liberal (58%) and moderate (59%) Republicans favor same-sex marriage, compared to only 36% of conservative Republicans. About six in ten (58%) conservative Republicans oppose it.

Among Democrats, as well, there is a considerable ideological divide. Nearly nine in ten (87%) liberal Democrats say same-sex marriage should be legal, compared to 67% of moderate and 52% of conservative Democrats. Four in ten (40%) conservative Democrats oppose same-sex marriage.

Liberal independents are roughly as supportive of same-sex marriage as liberal Democrats. More than eight in ten (82%) liberal independents favor same-sex marriage, compared to nearly three-quarters (73%) of moderate independents and fewer than half (49%) of conservative independents. More than four in ten (41%) conservative independents oppose allowing gay and lesbian couples to marry.

Declining Religious Resistance

Most religious groups in the U.S. now support same-sex marriage, including overwhelming majorities of Unitarians (97%), Buddhists (80%), the religiously unaffiliated (80%), Jewish Americans (77%), and Hindus (75%). Roughly two-thirds of white mainline Protestants (67%), white Catholics (66%), Orthodox Christians (66%), and Hispanic Catholics (65%) also favor same-sex marriage. A slim majority of Muslims (51%) favor same-sex marriage, but only 34% are opposed; 15% offer no opinion on this issue.

Over the last five years, opposition to same-sex marriage among nonwhite Protestants has dropped considerably. Most notably, black Protestants have moved from solid opposition to a plurality of support for same-sex marriage. In 2013, nearly six in ten (57%) black Protestants opposed same-sex marriage.4 Today just 43% oppose it, compared to nearly half (48%) who support it. Hispanic Protestants have moved from solid opposition to same-sex marriage to being divided over the policy. In 2013, nearly two-thirds (65%) of Hispanic Protestants opposed same-sex marriage. Today, 43% favor the policy, compared to 45% who oppose it and 13% who offer no opinion.

Opposition to same-sex marriage is now confined to a few of the most conservative Christian religious traditions. Only about one-third (34%) of white evangelical Protestants support same-sex marriage today, while nearly six in ten (58%) are opposed, including 30% who are strongly opposed. And just 40% of Mormons support same-sex marriage, compared to 53% who are opposed. Jehovah’s Witnesses, a racially mixed religious group, are the exception. Just 13% support the policy, compared to 63% who oppose it. However, nearly one-quarter (24%) of Jehovah’s Witnesses express no opinion on this issue.

Nevertheless, even those religious groups most opposed to same-sex marriage have become more accepting of it over the last five years. Since 2013, opposition to same-sex marriage has dropped 13 percentage points among white evangelical Protestants (from 71% in 2013 to 58% today).5 Over a similar time period, opposition among Mormons has dropped 15 percentage points (from 68% in 2014 to 53% today).6






Most States Now Support Same-Sex Marriage


Recent dramatic shifts in support for same-sex marriage are also evident at the state level. Today, majorities in 44 states believe gay and lesbian couples should be allowed to legally marry, compared to only 30 states in 2014.9 In only six states does the issue of same-sex marriage garner less than majority support: Alabama (41%), Mississippi (42%), Tennessee (46%), West Virginia (48%), Louisiana (48%), and North Carolina (49%). But notably, only one state, Alabama, has a majority of residents who oppose same-sex marriage.
Substantial regional disparities in views of same-sex marriage are evident. New England is generally more supportive of same-sex marriage than any other region in the U.S. Roughly eight in ten residents of Vermont (80%), Massachusetts (80%), and Rhode Island (78%) support the policy. And nearly three-quarters of Americans living in Connecticut (73%), New Hampshire (73%), and Maine (71%) support it. A number of Southern states have only a slim majority expressing support for same-sex marriage, such as Kentucky (51%), Arkansas (52%), and Georgia (52%).






Opposition Across the Country


A majority of Americans in nearly every state believe small business owners in their state should not be allowed to refuse service to gay and lesbian people. Notably, state-level opposition to same-sex marriage or nondiscrimination protections for LGBT people does not reliably predict state-level support for religiously based service refusals. Whereas opposition to same-sex marriage and nondiscrimination protections is concentrated in the South, the states with the lowest levels of opposition to service refusals cluster in and near the Mountain West and Midwest. In three states—Utah (48%), North Dakota (49%), and South Dakota (49%)—fewer than half of residents oppose service refusals. A slim majority of residents of Idaho (51%), Oklahoma (51%), Nebraska (53%), and Montana (53%) object to them.
In contrast, New England states express the strongest objection to religiously based service refusals. At least two-thirds of residents of Vermont (74%), Massachusetts (70%), Rhode Island (69%), and New Hampshire (67%) oppose allowing small business owners to refuse gay and lesbian customers.