At the end of March, social media erupted as 2.7 million Facebook users changed their profile pictures to the red equal sign avatar. This image was circulated because the Supreme Court took on same-sex marriage cases for the first time.
Since then, profile pictures have been changed back, and the issue is losing traction in the media. However, the cases remain undecided and are still relevant to the future of American same-sex couples. Both the Supreme Court and individual states have the power to make a statement about same-sex marriage in the next few weeks.
The first case, United States v. Windsor, tests the constitutionality of the Defense of Marriage Act (DOMA), which states that federally recognized married couples must be between a man and woman. Enacted in 1996, Congress overwhelmingly supported DOMA, winning with a vote of 342-67.
However, as same-sex marriage has become a more prominent platform for the gay community, couples questioned the constitutionality of DOMA enough that the Supreme Court is now addressing the case.
The second case, Hollingsworth v. Perry, addresses California's 2008 constitutional amendment Proposition 8. With this amendment, marriage in California was defined as only between opposite sexes. Several couples filed lawsuits and the case was ultimately appealed to the Supreme Court.
California's situation today is unique. While most of the nation has been on a fairly steady trajectory towards more rights for same-sex couples, California has backtracked on legalization. On May 15, 2008, California’s supreme court overturned a ban on gay marriage, and the state began granting licenses on June 15 of that year. But unlike other blue states such as New York and Massachusetts, gay marriage was subsequently overturned by popular vote in the 2008 general election, and has remained so ever since.
The state still recognizes gay couples who married after the California Supreme Court ruling but before the passage of Proposition 8 as lawfully wedded, however no new marriage licenses can be given to same-sex couples.
Andrew Koppelman, a professor of law and political science at Northwestern University, believes that the Supreme Court won't make a clear-cut decision on the case, but rather will dismiss it.
"They're likely to say that the sponsors of Proposition 8 don't have standing to bring the case to court," Koppelman said.
Justice Kennedy specifically supports this mentality. Although Kennedy wrote the court’s last two decisions that supported gay rights, during this case he claims the public is asking the court to “go into uncharted waters … we have five years of information to weigh against 2,000 years of history or more.”
If the Court dismisses the case, it will go back to California and the state will make a decision without federal guidelines. Currently, many states are attempting to pass legislation to legalize same sex-marriage, but its status varies greatly across the country.
In Rhode Island, same-sex marriage is almost a done deal. It has passed both state legislative branches, getting through the Senate with unanimous Republican support, and after going through the House one more time because of a Senate amendment, it will be signed into law by Governor Lincoln Chafee, a Republican-turned-independent. With Rhode Island’s approval imminent, same-sex marriage will be legal across the entirety of New England.
Minnesota is another state where even Republicans have gotten on board with the effort to legalize same-sex marriage, though not nearly as close to universally as in Rhode Island. Billionaire Paul Singer has launched a Super PAC, the American Unity PAC, aimed at persuading more conservative voters on the issue. The PAC is running ads in states across the nation, but Minnesota has had more than a quarter of a million dollars devoted to it – more than any other state.
Yet, despite Singer’s efforts, only one GOP lawmaker has committed to vote yes. Of course, Republican support for the bill might not even be necessary. The DFL (Minnesota’s statewide branch of the Democratic Party) controls both branches of the legislature by decent margins. The real challenge is not converting Republicans, but shoring up support from DFL legislators elected from districts that supported the unsuccessful 2012 referendum that would have banned same-sex marriage.
Here in Illinois, Governor Pat Quinn, a Democrat, is optimistic that a bill will be passed soon. Two House Republicans have announced their support, alongside U.S. Senators Dick Durban, Republican Mark Kirk and the chairman of the state GOP. Passage is not guaranteed, but pro-equality groups have been fighting hard, and with support from the three most prominent statewide elected officials (and that other famous guy from Illinois), the bill seems to have a strong chance.
The states have the freedom to make independent decisions regarding same-sex marriage. However, the Court has to be careful not to overstep its boundaries, according to Northwestern sociology graduate student Jill Weinberg. Weinberg, who has researched several aspects of LGBTQ rights, said this case is “too early for the general public opinion.”
"They don't want to usher in change," Weinberg said. "They want to ride on the current of change, so they need to let it play out."
Justice Scalia made comments that same-sex marriage is “newer than cell phones or the Internet.” Because of this, Scalia claims that the Court does not have enough information to make a decision, as it “does not have the ability to see the future.”
The case is likely to be dismissed because the majority of the justices are not strongly opinionated on the case, according to Koppelman. The Court does not need to make a decision until end of the term in June, which is when both Koppelman and Weinberg predict the case will be decided.
"They clearly feel politically constrained," Koppelman said. "That's why they're reluctant to discuss same-sex marriage now."