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New high court look at gay marriage? Now legal in 36 states

Posted January 8, 2015

— The Supreme Court has quietly engineered a dramatic increase in the number of states that allow gay and lesbian couples to wed. That increase also has raised the chances the justices soon will settle the legal debate.

Some justices expressed reluctance about deciding the issue when more than half the country prohibited same-sex unions. With Florida joining in this week, 36 states allow them, nearly twice as many as just three months ago.

The growth hasn't come from an outpouring of public support expressed in voting booths or state legislatures, but from the high court's surprising refusal last October to review lower court rulings in favor of same-sex marriages or to block them from taking effect.

The justices now face a situation in which just 14 states prohibit such unions, a number that may give comfort to a court that does not like to be too far ahead of the country. Three earlier seminal rulings that outlawed state-backed discrimination – in education, on interracial marriage and in criminal prohibitions against gay sex – were issued when a similar number of states still had the discriminatory laws on their books.

"There's no question that they knew what they were doing in October. They knew the implications of what they were doing," said Roberta Kaplan, the lawyer who represented New Yorker Edie Windsor in her successful Supreme Court challenge in 2013 to part of the federal anti-gay marriage law, the Defense of Marriage Act.

The Supreme Court again is considering whether to hear a gay marriage case, and another factor has raised the likelihood the justices will do so. In November, the federal court of appeals based in Cincinnati became the first, and so far only, appellate court to uphold state bans on same-sex marriage. Plaintiffs from Kentucky, Michigan, Ohio and Tennessee are asking to court to reverse that decision.

The justices are meeting in private on Friday to consider adding new cases to their late April argument session, and a decision could be announced soon. Meanwhile, a panel of federal appellate judges in New Orleans is hearing arguments Friday on anti-gay marriage laws in Louisiana, Mississippi and Texas.

The other states that continue to enforce same-sex marriage bans are Alabama, Arkansas, Georgia, Missouri (except in Kansas City and St. Louis), Nebraska, North Dakota and South Dakota.

Justice Antonin Scalia forecast what would happen when he dissented from the court's decision in the Windsor case in June 2013.

Justice Anthony Kennedy said in his majority opinion that the decision was not intended to resolve the question of whether states could prevent same-sex couples from marrying. But Scalia predicted that courts soon would apply Kennedy's words to strike down state bans on gay marriage.

"How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status," Scalia said.

It did not take long to for him to be proven right. The first ruling after the Windsor decision came six months later in Utah, followed by a deluge in every region of the country.

Opponents of same-sex marriage have fought a mostly losing battle to get judges to defer to voters and elected lawmakers who enacted laws and constitutional amendments in many states defining marriage as between a man and a woman.

John Bursch, who represented Utah in its unsuccessful bid to get the high court to hear that state's appeal, said the proponents of same-sex marriage have an easy argument to make to the justices.

"Thirty-six states have this now, so you don't have to wait anymore," said Bursch, who also served as Michigan's solicitor general. "The simple response to that is, 'Hey, that was the courts.'"

North Carolina lawmakers said Thursday that they will file a petition for certiorari to persuade the Supreme Court to take up the issue. North Carolina's ban on same-sex marriage was overturned when the 4th U.S. Circuit Court of Appeals declared a similar ban in Virginia unconstitutional.

“Regardless of where you stand on the ultimate issue, it is important to protect the will of the North Carolina voters who overwhelmingly approved a constitutional amendment,” House Speaker-designee Tim Moore said in a statement.

About 60 percent of the votes cast in a May 2012 referendum approved an amendment to the state constitution defining marriage as between one man and one woman.

“We’ve said all along North Carolina voters deserve to have their voices heard, and this important issue won’t ever be settled until a final decision is made by the U.S. Supreme Court,” Senate President Pro Tem Phil Berger said in a statement. “Today’s petition is the most efficient and cost-effective way to reach a final resolution.”

Kaplan noted the irony of federal courts leading the way in bringing same-sex marriage to large parts of the country. "For so long we were so scared of going into federal court," where state restrictions were usually upheld, she said.

The court's earlier major discrimination cases suggest that the justices may now be more comfortable setting a nationwide rule for gay marriage.

In 2003, 13 states still had laws against sodomy when the court ruled that states have no right to intrude on the private, personal conduct of people, regardless of sexual orientation. Interracial marriage still was illegal in 16 states in 1967, before the high court outlawed race-based state marriage bans. And in 1954, when the court issued its landmark decision in Brown v. Board of Education, 17 states had formally segregated school systems.

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  • Kaitlyn Legare Jan 9, 2015
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    It's probably both.

  • Jack Jones Jan 9, 2015
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    Disappointing to see so many people who either don't understand or don't respect our US Constitution and 14th amendment protections.

  • Kathryn Adams Jan 9, 2015
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    So what you're saying is that banning stores from selling extra-large sodas because of the health risks of too much sugar is a violation of American citizens' rights, but denying equal protection under the law for all same-sex couples - male and female - because of cherry-picked scientific findings showing harm to male couples is perfectly okay.

  • Pensive01 Jan 9, 2015

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    I'm entirely unsure if it's a case of asleep in class or just a case of only paying attention to one or two amendments, while ignoring the rest of the document. it's only a theory mind you, but the more comments I see that seem to not understand what's in the US Constitution the more I think the theory is valid.

  • Forthe Newssite Jan 9, 2015
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    you're a sad little thing, now aren't you?

  • Bill Brasky Jan 9, 2015

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    Constitution represents a set of guidelines or framework on how the government works. The Constitution doesn't say anything about gay marriage but does state equality among laws. 14th ammendment

  • Kenny Dunn Jan 9, 2015
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    Come to think of it we could end abortion by outlawing heterosexual activity.

  • Pensive01 Jan 9, 2015

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    Nice comment, and seriously spot on to boot.

  • Tommie Chavis Jan 9, 2015
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    THANK YOU!!!

  • Tommie Chavis Jan 9, 2015
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    On the contrary, we should not be promoting heterosexual activity either since they are the reasons we have gays and lesbians in the first place. We should also not be promoting heterosexual activity due to all the sexually transmitted diseases from man to woman and all their sexual partners even when they are married and cheating. See how easy that was to turn it right back around.

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