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On gay marriage, tide flowing one direction

Feb 19, 2014 - By David G. Savage, MCT Washington Bureau

A definitive test argued before the U.S. Supreme Court could come as soon as 2015.

WASHINGTON -- The legal campaign for marriage equality is picking up speed, moving at a pace that has surprised even longtime advocates and increasing the likelihood of a definitive Supreme Court test as early as next year.

Efforts by some lawyers to plan a careful strategy for which cases to push forward to the high court have largely been put aside amid a rush of lower-court rulings striking down bans on same-sex marriage. The most recent came last week in Virginia, the first such ruling in the South.

"I don't think there is any way to predict" which case will arrive at the Supreme Court first, lawyer David Boies said after the Virginia ruling.

In the last eight weeks, in addition to the Virginia decision, federal judges in Utah and Oklahoma have struck down laws limiting marriage equality. A federal judge in Kentucky ruled the state must recognize same-sex marriages from other states. And in Ohio, a federal judge issued a more narrow ruling that cast doubt on the state's ban.

Increasingly, the judges are saying they can see no legitimate justification for denying marriage licenses to same-sex couples. With the Supreme Court having said that states cannot validly base marriage laws on traditional religious disapproval of homosexuality, the remaining justifications offered to defend the laws fail to pass muster, the judges have ruled.

Virginia ruling

U.S. District Judge Arenda Wright Allen in the Virginia case began her opinion with a lengthy quotation from Mildred Loving, the plaintiff who successfully challenged Virginia's law against interracial marriage in the high court in 1967.

That opening served notice that the judge, a former Navy lawyer appointed in 2011 by President Barack Obama, did not accept Virginia's argument that history and tradition were enough to justify the state's ban on same-sex marriage.

She also forcefully rejected the state's argument that limiting marriage to heterosexual couples is good for children. She noted that one of the two couples who sued -- Mary Townley and Carol Schall -- have a 16-year-old daughter, Emily.

"Like the thousands of children being raised by same-sex couples, (Emily) is needlessly deprived of the protection, the stability, the recognition and the legitimacy that marriage conveys," the judge wrote. Though the state has "compelling interests in protecting and supporting our children," they are "not furthered by a prohibition on same-sex marriage."

If marriage is good for families, for children and for society -- as all sides agree -- then the state may not deprive its "gay and lesbian citizens of the opportunity and the right to choose to celebrate, in marriage, a loving, rewarding, monogamous relationship with a partner to whom they are committed for life," she concluded.

Legal landscape

The sequence of rulings amounts to "a fundamental shift in the legal landscape," said Evan Wolfson, president of Freedom to Marry. Jurists increasingly are saying that "marriage discrimination against loving and committed gay couples is indefensible under our Constitution," he said.

That shift is not limited to judges. The chief state attorneys in Virginia, Pennsylvania and Nevada refused to defend the constitutionality of their long-standing laws forbidding gay marriage.

The pace of the rulings may be more rapid than some Supreme Court justices would have preferred.

Last year, the high court avoided ruling directly on whether gays and lesbians had a constitutional right to marry. Instead, the justices issued a 5-4 ruling that struck down the federal Defense of Marriage Act and extended equal rights to legally married same-sex couples.

Although the ruling had a limited reach, it included broadly worded passages about equal rights that lower-court judges are now citing as a basis for striking down bans on same-sex marriage.

Court lineup

Most speculation about how the Supreme Court would handle a second round of same-sex marriage cases has focused on Justice Anthony M. Kennedy, a Reagan appointee who has written the court's major gay rights opinions. He is often the swing vote between the court's four Democratic appointees and its four conservative Republicans.

But Kennedy may not be the primary advocate for a go-slow approach. In last year's rulings, he dissented from the court's decision to resolve a case over California's Proposition 8 without ruling on whether gay couples had a constitutional right to marry.

Justice Ruth Bader Ginsburg, a champion of women's rights and a liberal stalwart, joined the ruling in that case. She has long argued the court made a mistake in its Roe vs. Wade decision that struck down all state abortion restrictions. A step-by-step approach in the courts would have had a less polarizing effect on the country, she has said.

In the end, however, no one doubts that Ginsburg would support same-sex marriage. In August, she officiated at the marriage of the Kennedy Center's president, Michael Kaiser, to his male partner.

Both Kennedy and Ginsburg pay close attention to the trends in the states and in the courts. And on same-sex marriage, the tide has been flowing in one direction. Currently, 17 states and the District of Columbia allow gay couples to marry.

Changing politics

Political opposition to same-sex marriage also has waned. Rather than criticizing gay people, some Republican leaders have emphasized the importance of letting voters have the final word.

Ed Gillespie, the former Republican Party chairman who is running for a Senate seat in Virginia, faulted the judge for intervening in such a contentious issue.

"This is a matter the people of Virginia should be free to decide, rather than having a federal judge impose law by judicial fiat," he said in a statement Friday.

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