Same-sex marriage will be legal nationwide as early as next year, Emory expert predicts

By Laura Douglas-Brown | Emory Report | July 29, 2014

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June 26 marked the first anniversary of the U.S. Supreme Court’s historic decision in United States v. Windsor, which required the federal government to recognize legal same-sex marriages.

Updated July 29, 2014: On July 28, a panel of the U.S. Court of Appeals for the Fourth Circuit struck down Virginia’s ban on same-sex marriage, marking the second federal appellate court decision in favor of same-sex marriage since the U.S. Supreme Court’s historic ruling in United States v. Windsor. The day of the Fourth Circuit decision, North Carolina’s attorney general announced his state — also part of the Fourth Circuit — would no longer defend its ban on same-sex marriage.

The U.S. Supreme Court will likely issue a ruling next year requiring all states to allow same-sex couples to marry, an Emory constitutional law expert predicts.

Michael Perry

Michael Perry is Robert W. Woodruff Professor of Law and a senior fellow at Emory’s Center for the Study of Law and Religion. Emory Photo / Video.

Michael Perry, Robert W. Woodruff Professor of Law and a senior fellow at Emory’s Center for the Study of Law and Religion, cited the June 25 ruling by the U.S. Court of Appeals for the 10th Circuit striking down Utah’s ban on same-sex marriage. The Utah Attorney General’s Office appealed the decision, which has been stayed, to the U.S. Supreme Court.

“Assuming the court accepts the case, which is likely, it would be heard during the 2014-15 Term of Court, so we may be getting a ruling from the Supreme Court about this time next year,” Perry says.

The Utah case was the first appellate decision in favor of civil marriage for gay couples since the U.S. Supreme Court’s historic decision in United States v. Windsor, which required the federal government to recognize legal same-sex marriages. June 26 was the first anniversary of the Windsor decision.

In that case, the Supreme Court struck down as unconstitutional Section 3 of the Defense of Marriage Act, which denied federal recognition to same-sex marriages even if they are legal in the states or other jurisdictions where they are performed. But the court left intact sections of DOMA that allowed states to refuse to legally marry same-sex couples and to refuse to recognize same-sex marriages from other jurisdictions.

Those state bans are now under judicial attack around the country, with legal challenges filed in every state where same-sex marriage is currently banned. And in the year since the Windsor decision, every federal district court to rule on the issue has sided with same-sex marriage supporters.

The need to resolve those cases, and any conflicting appellate court decisions they will spark, will lead the Supreme Court to quickly rule that state bans on same-sex civil marriages are also unconstitutional, Perry argues.

On the eve of the Windsor anniversary, Perry shared his thoughts on the future course of the same-sex marriage debate, the pace of change since Windsor, and why, although he agrees with the outcome of that case, he believes it should have been decided on different grounds.

Do the multiple legal challenges to state bans on same-sex civil marriage herald a need for the Supreme Court to weigh in on the remaining parts of the Defense of Marriage Act?

It is just a matter of time. Here is what is going to happen. All the federal trial courts (technically known as United States district courts) have been deciding the issue the same way. Now when those cases are appealed and the federal appeals courts begin to decide whether those trial judges got it right, those federal appeals courts are probably not going to all agree among themselves.

You are going to have a conflict of federal appellate decisions so it is just inevitable that the Supreme Court will then have to weigh in and say what the rule is going to be. I imagine that will happen certainly within a couple of years.

If the Supreme Court agrees to hear Utah’s appeal of the 10th Circuit decision, it will happen even more quickly. That case would be heard during the 2014-2015 Term of Court, meaning we would be getting a ruling about this time next year.

If the Court doesn’t take the Utah case, it is extremely likely we will have other federal appeals decisions this next year, what I think of as the 2014-2015 academic year, and therefore it is extremely likely that the Supreme Court will weigh in during the 2015-2016 year.

Prior to the Windsor decision, gay couples could marry in nine states — with three more states having legalized same-sex marriage, but their laws had not taken effect. Now, 20 states allow gay couples to marry. Are you surprised by the pace of change in the last year?

I doubt anyone saw the change happening so quickly. It is surprising, but as I think back over the last year, I think Justice Anthony Kennedy’s opinion in Windsor virtually decided the issue. When you say that the federal government’s refusal to acknowledge the legal marriage of same-sex couples is demeaning, dehumanizing, demoralizing, an assault on dignity, and so forth — when you say all of those things, then how is it not the case that a state’s refusal to admit same-sex couples to marriage doesn’t have the same resonance?

In retrospect it is not surprising that federal trial judges who take seriously what Kennedy was saying in that case would conclude there is no constitutional argument for the state any longer given what the majority said in Windsor. I wouldn’t be surprised if two years from this month we are waiting for that decision.

Do you think the South will be a hold out?

It is not going to happen in every state in any immediate future unless the Supreme Court rules that every state must admit same-sex couples to civil marriage — I’m thinking of states like Georgia, Mississippi, Alabama, Oklahoma, Idaho and so forth.

But if the Supreme Court decides the case the way I think it will decide the case in two years, then of course it will be the law of the land. It will be the case that every state has to admit same-sex couples to civil marriage.

Do you think a ruling like that would resolve the issue for the general public, or do you think it would be a case like Roe v. Wade (the 1973 decision legalizing abortion) that becomes a rallying cry and prompts decades more of controversy?

There are reasons why the abortion controversy is perennial, but it does not seem to be the case that the controversy over same-sex marriage is destined to be perennial. It is in the process of being resolved right now. In 20 years, given the data about generational differences [in opinions on same-sex marriage], it is fairly safe to predict that most people are going to wonder what all the fuss was about.

The views of the American people are changing rapidly with respect to this issue and I don’t see any reason why the issue isn’t going to cease being controversial within a generation.

Looking back on the Windsor decision, you have said that you think the Supreme Court ruled correctly, but for the wrong reason. Windsor was decided primarily on the basis of equal protection, but you have said you believe it would have been stronger if based in the right to privacy. Why?

The court has used the terminology “the right of privacy,” but I think what it is really getting at in those cases is the right of people to live their lives in a way that is compatible with their deepest religious and moral commitments and convictions. …

I think in this case too, that would have been the sensible basis on which to rule, rather than an equal protection basis, which suggests that opposition to same-sex marriage is necessarily based on a kind of dehumanizing or demeaning view of LGBT persons as such — without regard to moral views as to the conduct. 

I have no doubt that a lot of opposition to same-sex marriage is in fact based on such views, but not all of it is. … It would have made much more sense to me if the court had said this: We are not accusing people who oppose same-sex marriage of these bigoted views (though we know that many have them), we are simply saying that the other reason for opposing same-sex marriage, namely the view that same-sex intimacy is immoral, is like the state deciding that contraception is immoral or the state deciding that certain other things are immoral.

This is really beyond the legitimate jurisdiction of the state. These are intensely personal matters and the state doesn’t have any legitimate interest in deciding what is moral in respect to those issues.

Looking at the Windsor decision setting precedent for cases since then, does that distinction matter?

I’m a law professor, so these nuances matter to me, and I enjoy writing about them and discussing them with my students. But as a real world matter, I’m not sure they do matter. The bottom line matters, and you’ve noticed that all of those federal trial court decisions in the last year since Windsor, they almost all invoke equal protection. They do because they have a looser understanding than I do about what that is all about.

But what matters in the real world is that the Supreme Court gets the bottom line correct … and in my judgment, in Windsor, they did. All the federal trial courts that have been deciding cases since Windsor, they’ve all been getting the bottom line correct — even if my preference would have been for a different constitutional rationale.

Interview originally posted on June 25, 2014