Same-sex marriage indecision moves to US Supreme Court

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Simon Carswell

February 2, 2015

Gabriela Polanco says her 14-month-old daughter Alexandra Noemi is running around, eating with a fork and drinking out of “a big-girl cup”.

Two years ago, she and her long-term girlfriend, Amanda Davila, who live in Houston, Texas, decided they wanted to start a family some eight years into their relationship.

Through an anonymous sperm donor, Polanco became pregnant on their first attempt at insemination. Now they have a “ joyful” daughter who calls them both “Momma”, she says. They are a happy family.

Polanco (29) is concerned, though, that if something happened to her, Davila would have no automatic legal rights over their daughter.

She and Davila, also 29, would marry if they could, she says, but as a lesbian couple they can’t; Texas is one of 14 states where same-sex couples cannot wed, even though the state’s ban on gay unions was found to be unconstitutional. Even if they married in another state, their union would not be recognised in Texas.

“To me a traditional marriage is one where two people love each other, where they are loyal to each other, they are monogamous, they bring out the best in each other and they are committed, regardless of what gender either is,” she said.

Marriage ban

In February 2014, US district court judge Orlando Garcia struck down the state’s nine- year-old ban on same-sex marriage – passed by voters by a three-to-one margin – saying that the state’s marriage laws demeaned the dignity of same-sex couples “for no legitimate reason.” He left the marriage ban in place pending appeals.

In a period of rapid change since Massachusetts became the first state to legalise same- sex marriage in 2004, 36 states and the District of Columbia – covering more than 70 per cent of the population – are now issuing marriage licences to same- sex couples. In a little over a year the number of states permitting same-sex marriage has more than doubled, primarily due to court rulings, mostly by federal judges.

In other states same-sex marriage has been approved by state governments with legislation. Three – Maryland, Maine and Washington – passed referendums legalising same-sex marriage by popular votes, in 2012, just months after Barack Obama became the first sitting US president to declare publicly that he supported the legalisation of same-sex marriage.

Last week, Alabama became the latest state to see a federal judge strike down a ban but the ruling has been put on hold pending appeals.

Polanco’s home state of Texas and two other conservative states in the south, Louisiana and Mississippi, are fighting legal challenges to recognise same-sex marriage. They could be the last before the US Supreme Court rules on behalf of the entire country.

State-by-state basis

Until last month, America’s highest court appeared content to let one of the biggest social questions facing the country be decided on a state-by-state basis. Then on January 16th the Supreme Court surprised many by agreeing to consider four cases from Michigan, Ohio, Kentucky and Tennessee.

The court decided to act after a split in the lower circuit appeals courts, which had previously ruled in unanimity on the issue. In November, the three- judge sixth circuit court of appeals in Cincinnati – one of 12 appellate courts across the US system – split on the issue, ruling to uphold marriage bans in these four states.

At the centre of the division is a concern that unsettles some US judges who see social issues such as same-sex marriage as a matter for the people and the states to decide, not for judges applying the constitution.

The Supreme Court has previously ruled on two landmark same-sex marriage cases in 2013 but failed to address the key questions in this national debate: do gays and lesbians have a right under the US constitution to marry and do states have the right to ban the practice? In simple terms, they will decide whether “same-sex marriage” is “marriage”.

In United States v Windsor, the court forced the government to recognise same-sex marriages, finding the 1996 law, the Defense of Marriage Act, unconstitutional. In Hollingsworth v Perry, the court permitted gay unions in California. Same-sex marriage advocates want the court to go further to make a ruling that would stand right across the country.

The court will hear arguments in April and a decision will be made before the end of this legal term in June. The court will decide whether the 14th amendment to the constitution, ratified in 1868 after the civil war, guarantees equal protection and due process that prevents states from treating gay couples differently from heterosexual couples.

Evan Wolfson, founder and president of gay marriage campaign group Freedom to Marry, said it was crucial to build a critical mass of states in support of same-sex marriage in order to create a climate for the court to “finish the job” and bring about “a national resolution”.

“We are very, very hopeful that the Supreme Court will do what it did in 2013 when it struck down the anti-marriage law at the federal level and do what 60 state and federal courts have done, which is to affirm the freedom to marry,” he said.

Flood of lawsuits

The Windsor ruling led to a flood of lawsuits pushing for same-sex marriage in virtually every state that didn’t recognise gay unions.

“The American public and our community were very excited by the Windsor decision and saw a ton of promise,” said Sarah Warbelow, legal director of pro-gay marriage group Human Rights Campaign.

Public opinion has shown that Americans have moved in favour of same-sex marriage faster than on almost any other social issue. A Washington Post-ABC News poll put support for gay unions at 59 per cent last year, compared with 38 per cent a decade earlier.

Gay rights activists believe that the weight of public opinion has played a role in the Supreme Court’s decision to take up their decade-long struggle and may have a bearing on the ruling of the nine judges.

Brian Brown, president of the National Organisation for Marriage, who believes marriage is by definition a union of a man and woman, disputes the polls. He says that if gay marriage was put to a popular vote in the states, an overwhelming majority would oppose it, pointing to rejection votes in various states including North Carolina, a swing state, as recently as 2012.

“I am hopeful the Supreme Court will not find what is not there: namely a right to redefine marriage in the US constitution,” he said.

“Once that happens the overwhelming majority of states that have had judges force same-sex marriage on them will go back to the way they were before: back to the true understanding of marriage.”

Polanco sees things differently. In the 10 years she has been in a same-sex relationship she has seen sweeping changes in attitudes. She believes same- sex marriage in Texas, and the rest of the country, is inevitable, either through appeals courts or the Supreme Court.

 

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