The Oregon Trail

Getting complicated, for now.

Last year saw a rapid expansion of marriage equality, often by state legislative action.  This year little has been achieved by legislatures because most of the remaining states have some kind of state constitutional limit on marriage equality and many of those states are run by Republicans.  So the action has turned to the courts with same-sex couples suing on the grounds that these state bans deny them their federal right to equal protection under the law.

The results have been unanimous.  Judges in states from across the political spectrum have ruled that bans on same-sex marriage are unconstitutional.  In most of these states the governor or attorney general has promptly stepped into to appeal the ruling and to ask for a stay of the opinion pending that appeal.  These appeals will take several months and when they begin to get decided, we could see different results form different courts.  Arkansas' ban was actually struck down in state court.  But their state supreme court may reverse it.  I suspect that most federal circuits will uphold the rulings of the district courts and strike the law down.

For this, we can thank Anthony Kennedy.  Last year he could have ruled to strike down the Defense of Marriage Act for a number of narrow reasons.  But his opinion was broad. He said that the law violated the freedom of a person under the Fifth Amendment.  Justice Scalia pointed out in his dissent that while the opinion only applied to the federal legislation, it would inevitably apply to state laws as well.  For once, Nino was right.  More than a dozen federal judges have looked at the issue in the past year and they all agree that state bans on marriage equality are impermissible.

I have not updated my marriage equality chart since December.  Back then only Utah's state ban had been struck down.  I turned Utah blue that proved premature as the state stopped issuing wedding licenses to gay couples after a few days.  The new map reflects four categories of states:

1. Eighteen blue states (plus DC) where Marriage Equality is a legal finality.  I have colored Oregon blue because the state has announced that they will not appeal the decision of the federal district court and an outside group was told they lack standing to pursue that appeal.  Gay marriage is alive and well in Portlandia, for good.

2.  Nineteen red states where marriage is still limited to heterosexual couples.  In the following months several of these states will probably flip to grey or blue because a number of cases are being litigated in these states.

3.  Ten grey states where the ban on gay marriages have been stuck down but the ruling is being appealed.  Some of these rulings are more narrow than a complete removal of the law from the books.  (For instance a judge has ruled that while Ohio has the right to only issue wedding licenses to straight couples, it must recognize gay marriages performed in other states.)

4. Three green states where gay relationships are offered some legal protection through either civil unions or domestic partnerships.

A plurality of Americans now live in the states with full marriage equality.  To put it in presidential election terms, these blue states have 211 votes in the electoral college.  The red states have 175 and the grey 127.  The three green states have 25.  A year from now, the various federal circuits will probably tip enough of the grey states into the blue category that a an outright majority of Americans will live in states that have full marriage equality.  Some of those appeals will go onto the Supreme Court.  If there is a substantial split among those circuit rulings, the court will have to take one of the cases.

The most likely outcome is that that case will be heard during the 2015/2016 court calendar. If the court is still constituted as it presently is, the court will most likely rule that no state has the right to deprive gay people of the right to marry.  And then I will celebrate by posting a sea to shining sea map of 50 blue states.