An “overwhelming” number of judicial decisions finding a constitutional basis for same-sex marriage, and the Supreme Court’s refusal to review those decisions, suggest that it is just a matter of time before same-sex marriage is legal nationwide, according to a law professor and expert on law and sexuality.
“What was once a steady trend is now more like an avalanche,” says Associate Professor Michael Boucai.
“Since the Supreme Court struck down a key provision of the federal Defense of Marriage Act” in June of 2013, “no fewer than 47 lower courts have ruled in favor of same-sex marriage. So far only three courts have ruled otherwise.
“That’s an overwhelming tide,” says Boucai. “And the Supreme Court is apparently unwilling to curb it.” Earlier this month the court declined to hear cases from three federal circuit courts that had invalidated state-level bans on same-sex marriage.
“The justices’ restraint is widely understood to signal their approval of the direction in which most courts are moving,” he said.
“I suspect some lower-court judges are gritting their teeth. But they know where the wind is blowing. They know that a decision against marriage equality would likely be reversed.”
Boucai says the issue is moving “with breathtaking speed.” Every week is a big week, he says.
“Just this week we learned that President Obama’s views on the issue have ‘evolved’ even more,” he says. “The president now believes—as a matter of constitutional law, not just of personal conviction—that ‘the Equal Protection Clause does guarantee same-sex marriage in all 50 states.’ That’s a clear statement.”
And Obama is far from alone. Supreme Court Justice Ruth Bader Ginsburg said recently the Supreme Court is unlikely to take a same-sex marriage case unless a federal Court of Appeals bucks the current trend and upholds a same-sex marriage ban.
Despite concern that “the freedom to marry may not prove to be so liberating,” Boucai has an established record of supporting marriage equality as a legal matter.
“I have always believed that same-sex couples should have the right to marry,” Boucai says. “I have long found certain constitutional arguments in favor of that right to be compelling, as most judges do now.”
Boucai’s last two research articles have also centered on same-sex marriage. The first, “Sexual Liberty and Same-Sex Marriage: An Argument from Bisexuality,” claimed that same-sex marriage bans are unconstitutional because they channel people into heterosexual relationships and thus infringe their right to choose homosexual relationships.
The second, to be published this winter in the Yale Journal of Law and the Humanities, is about the first same-sex marriage cases, which date to the early 1970s. In “Glorious Precedents: When Gay Marriage Was Radical,” Boucai argues that these early, unwinnable lawsuits were instances of political theater, designed to communicate some of gay liberation’s most important messages.
Although Boucai agrees that nationwide legalization of same-sex marriage is “probably inevitable,” he cautions that “this important achievement is by no means the end of the road to full liberty and equality.”
“The work of the LGBT movement will not be over when the right to marry is secure from sea to shining sea,” Boucai says. “There remains a lot of other work to do, from ensuring safe schools to securing universal protections against discrimination in employment, housing, and public accommodations — protections that don’t currently exist in federal law and in many states.”