A federal appeals court has ruled that no state has the power under the U.S. Constitution to prevent same-sex couples from marrying. A lower court had struck down Utah’s constitutional ban on gay marriage, and the decision Wednesday was the first time a federal appeals court had endorsed marriage equality for same-sex couples.
The ruling was a ringing victory for advocates of the freedom to marry for gay couples. The court ruled that marriage equality was a “fundamental right,” a legal term that sets a high bar against any infringement. A fundamental right is one that inheres with each individual, like the freedom of religion, and government ordinarily does not have the authority to take that right away.
With the new appeals court ruling and a host of rulings by lower federal courts upholding marriage equality, it is likely that the question will come before the Supreme Court as soon as next year. When states or courts differ about the interpretation of constitutional rights, it becomes the role of the Supreme Court to decide how the Constitution applies to all of the states.
It is basic to our federal system that where fundamental rights are concerned, the states’ prerogatives are limited. Thus, the predominant role that the Mormon church plays in Utah in creating a culture of conservatism has no bearing on the reading of the U.S. Constitution with regard to marriage. In the same way, Mississippi and other former slave states have no authority based on their traditions or history to enact laws creating racial inequality. The federal Constitution applies everywhere equally.
The thinking of the appeals court was foreshadowed in the arguments made by Beth Robinson back in 1998 when she appeared before the Vermont Supreme Court seeking marriage equality in the landmark Baker case. Robinson, who herself is now a justice on the Vermont Supreme Court, argued that the right to marry was a fundamental right. Second, she argued that barring gay marriage was unlawful gender discrimination. Third, she argued that barring same-sex couples from marriage was contrary to our understanding of the definition of marriage and a rational understanding of its purpose.
The appeals court ruling this week was a complete endorsement of Robinson’s arguments. The court likened the ban on same-sex marriage to the ban on interracial marriage, a comparison Robinson had explicitly made. The appeals court also rejected the notion that because of tradition heterosexual marriage was, essentially, self-justifying. “To claim that marriage, by definition, excludes certain couples is simply to insist that those couples may not marry because they have historically been denied the right to do so,” the judges said. The court found that discrimination is not justified just because it is of long standing.
The freedom to marry is advancing like an inexorable tide. At present 19 states allow same-sex marriage: California, Connecticut, Delaware, Hawaii, Iowa, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont and Washington, plus the District of Columbia. In 12 other states judges have issued rulings in favor of same-sex marriage, some of which have been appealed: Arkansas, Idaho, Indiana, Kentucky, Missouri, Ohio, Oklahoma, Tennessee, Texas, Utah, Virginia and Wisconsin.
It is safe to say that the anger and alienation felt in many conservative circles and regions is owing in part to a sense that the nation is sliding in the wrong direction, on gay marriage among other issues. Moral condemnations of same-sex marriage, or of homosexuality itself, will be with us for the foreseeable future. But over time more and more people are likely to gain an appreciation for the pluralistic character of democracy — that democracy allows people of all beliefs, faiths, colors, orientations to enjoy full equality. Already generational change has shifted public attitudes so that hostility to gay marriage is no longer the vote-getter it was in years past.
As a federal judge wrote in a separate case from Indiana, “In time, Americans will look at the marriage of couples such as plaintiffs, and refer to it simply as a marriage — not as a same-sex marriage.”
That is the transformation that Beth Robinson was helping to bring about that day 16 years ago when she appeared before the Vermont Supreme Court.
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