The U.S. marriage-equality landscape changed remarkably this week.
Overnight, the number of states where same-sex couples have or will soon have the freedom to marry went from 19 to 30!
On Monday, the Supreme Court, to the surprise of many, denied review of all seven marriage petitions before it. This meant that stays on appeals court decisions striking down discriminatory marriage bans were lifted, immediately affecting Virginia, Indiana, Wisconsin, Oklahoma, and Utah. The decision also paved the way for marriage equality in the other states under the jurisdiction of these appeals courts: North Carolina, South Carolina, West Virginia, Colorado, Kansas, and Wyoming.
The very next day, five more states gained ground.
On Tuesday, a three-judge panel on the 9th Circuit Court of Appeals unanimously found the bans on marriage equality in Idaho and Nevada in violation of the Equal Protection Clause of the Fourteenth Amendment. The ruling also affects other states in the 9th Circuit: Alaska, Arizona, and Montana.
Judge Stephen Reinhardt wrote:
"When we integrated our schools, education improved. When we opened our juries to women, our democracy became more vital. When we allowed lesbian and gay soldiers to serve openly in uniform, it enhanced unit cohesion. When same-sex couples are married, just as when opposite-sex couples are married, they serve as models of loving commitment to all."
The 9th Circuit decision raises the number of states soon expected to have marriage equality to 35!
What are the implications of this sudden transformation of the equality landscape? On the one hand, in declining to review any of these cases, the Supreme Court left unresolved the fundamental question of whether same-sex couples have a constitutional right to marry. On the other hand, in allowing the freedom to marry to proceed in so many states, the marriage-equality momentum is significantly stronger than it was only a few days ago.
Evan Wolfson, president of Freedom to Marry, said the Supreme Court was sending a “bright-green light,” telling “the lower courts and states that it’s time to end marriage discrimination.”
Roberta Kaplan, who represented Edie Windsor in her successful DOMA challenge, told The New Yorker:
“Our core thesis in Windsor was that Edie and Thea’s marriage was the same as any other couple who have been together for four decades. We thought we would win in Windsor if we could persuade the Justices that that was so. What the Court did today was extend that basic principle even further, since now most Americans in most of the states will live in a place where the marriages of gay people are a reality.”
Some analysts are arguing that the fight for the freedom to marry is essentially over. Read this line of thinking in The Atlantic. Another legal analyst shows how nationwide marriage equality may be achieved without the Supreme Court ever taking another marriage case. If, however, one of the circuit courts, where decisions are still pending, finds a state’s ban on marriage equality constitutional, then the issue is likely to head back to the Supreme Court.
What is known for sure is that, because of the incredible forward movement this week, same-sex couples are marrying in Virginia, Colorado, Indiana, Wisconsin, Utah, Oklahoma, West Virginia, and Nevada. Despite vows of resistance from anti-gay political leaders in some states, there will be more and more happy newlyweds in the days and months to come.
Still, Evan Wolfson reminds us that each day the unfair patchwork of marriages laws continues is another day when same-sex couples and their families face harm:
"But we are one country, with one Constitution, and the court's delay in affirming the freedom to marry nationwide prolongs the patchwork of state-to-state discrimination and the harms and indignity that the denial of marriage still inflicts on too many couples in too many places."
There is still work to be done, but this week brings us that much closer to the day when marriage equality will not depend on where in the U.S. you live and when all Americans will have an equal opportunity to marry.