Law professor David Meyer is an expert on family and constitutional law.
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The push for same-sex marriage hit another bump when voters overturned a new Maine law that legalized the unions. But law professor David Meyer, an expert on family and constitutional law, says momentum and public support are slowly building. In an interview with News Bureau Business & Law Editor Jan Dennis, he predicts time and generational change will ultimately become the movement's greatest ally.
Did the same-sex marriage movement lose steam last month when Maine voters repealed the state's new law allowing gays and lesbians to wed?
The vote in Maine was plainly a setback for advocates of same-sex marriage, but I doubt it will prove terribly significant in the long term. The campaign for recognition of same-sex relationships has followed a pattern of two steps forward and one step back. True, the campaign gave some ground in Maine - and again more recently in New York, where the state senate voted down legislation that would have allowed same-sex marriage - but it continues to gain strength fundamentally.
There are several markers of the forward momentum. First, the pace of recognition in the states has picked up. After Massachusetts broke ground by legalizing same-sex marriage in 2003, there was a five-year lull. Since 2008, however, six states - California, Connecticut, Iowa, Maine, New Hampshire and Vermont - have followed suit, though voters in California and Maine backed off. Second, the movement has gained political traction in some states. The first wins for same-sex marriage came from court rulings, but more recently legislatures in several states have acted to allow same-sex marriage entirely on their own initiative. Third, some jurisdictions that don't allow same-sex marriage directly, including New York and the District of Columbia, have nevertheless acted to recognize same-sex marriages created elsewhere, providing a significant legal foothold. Finally, opinion polls show broadening public support for same-sex marriage, especially among younger generations.
With the vote in Maine, 31 states have now blocked same-sex marriage through public referendum. From a legal standpoint, is that a sign that same-sex marriage advocates should abandon the state-by-state approach that seemed to be making progress just a year ago?
In recent years, advocates for same-sex marriage have followed a strategy of fighting for legal change state-by-state, through legislation or legal claims rooted in state constitutions. Frustration over losses in a few states has led some advocates to reconsider that approach, but I think that would be a mistake. There is evidence that the progress made in some states has helped to shift public opinion toward acceptance of same-sex relationships and, ultimately, same-sex marriage. For example, initial experience allowing same-sex couples to form "civil unions" in Connecticut and Vermont helped to pave the way a few years later for same-sex marriage in those states, and New Jersey is now debating the same move. The state-by-state approach is accomplishing essential spadework for a basic shift in social understandings about marriage, and it is very difficult for law to get out too far in front of public opinion.
Might the battleground shift to other options, such as seeking congressional repeal of a law that bans federal recognition of same-sex marriage or pressing lawsuits on constitutional grounds in hopes of taking the issue to the U.S. Supreme Court?
Until recently, advocates for same-sex marriage scrupulously avoided taking the fight to the federal level out of a calculation that they were likely to lose in Congress and the U.S. Supreme Court. In fact, they deliberately omitted any federal constitutional claim from state-court lawsuits in order to deprive the Supreme Court of jurisdiction to decide the question. Controversially, David Boies and Ted Olson - the opposing legal titans from Bush v. Gore in 2000 - have now teamed up to open a new front in the federal courts. Their lawsuit, claiming that California's repeal of same-sex marriage in 2008 violates the federal constitution, is meant to set the stage for a conclusive national win in the Supreme Court. It is a major gamble. It's true that the Supreme Court is more receptive to the argument than it was 10 years ago. Even before Justice Sotomayor's appointment to the court, the justices demonstrated new sensitivity to the equality rights of gays and lesbians, most notably in a 2003 case striking down a Texas law criminalizing same-sex sodomy. But there is a difference between decriminalizing same-sex intimacy and mandating its public acceptance through marriage, and it is far from clear that the court is now ready to take that step. This is why many advocates of same-sex marriage worry that the Boies-Olson lawsuit may be premature: a Supreme Court decision affirming the constitutionality of laws banning same-sex marriage could erode the progress won through the state-by-state approach and set back the cause for a decade or more.
Can the push to legalize same-sex marriages ultimately succeed and, if so, how long might it take?
It's already succeeded in five states, which is significant in its own right. And I have no doubt that it will succeed more broadly in the years ahead. Some national public opinion polls now suggest, for the first time, that more people support same-sex marriage than oppose it, and all agree that support significantly increases among younger generations. That means that there is little doubt that political support for same-sex marriage will continue to broaden over time. Right now, opponents seem to be benefiting from the greater intensity of their commitments, but time - and generational change - is working against them.