On Tuesday, November 6th Maine, Maryland and Washington voted to legalize same-sex marriage, while Minnesota voters rejected a proposed constitutional amendment banning same-sex marriage.
As reported by Digital Journal on Tuesday, Maine, Maryland and Washington joined 6 other states and the District of Columbia in legalizing gay marriage.
In 2001, the Netherlands became the first country to legalize same-sex marriage. Since then, 10 other countries have followed suit. Those countries include Belgium, Spain, Canada, South Africa, Norway, Sweden, Portugal, Iceland and Argentina. France, Germany and Great Britain recognize civil unions between same-sex couples.
On November 20th, the United States Supreme Court will meet and review six gay rights cases brought before the court. One of the cases involves California's Proposition 8, a law which outlawed same-sex marriage in the state, while four address the Defense of Marriage Act (DOMA). Some are wondering if Tuesday's victories will help to sway the court in favor of ruling both DOMA and Prop. 8 as unconstitutional.
Digital Journal sent an email to Freedom to Marry asking for their perspective on Tuesday's election results and how it might impact the Supreme Court. In an email response, they said:
"These victories are a joyous step forward for millions of gays and lesbians around the country who dream of someday being able to marry the person they love. They demonstrate that the freedom to marry matters to all people. We hope court hears the voices of the American people and acknowledges that it is time to stop legalized discrimination."The Human Rights Campaign was also contacted by Digital Journal about their views on the upcoming Supreme Court meeting and received the following email response:
"For generations, Americans have looked to the Supreme Court to uphold the fundamental tenets of our constitution and on November 20th, the court will face those questions once again for the LGBT community. Never before have the Justices confronted so many cases critical to the lives of LGBT people and our families. With truth and justice on our side, I know that we will prevail in knocking down the dark walls of discrimination known as Prop 8 and DOMA."
Some speculate that Tuesday's victories may actually move the court in the opposite direction however. When using the legal analysis that applies to equal protection challenges, laws that discriminate against politically powerless groups receive greater scrutiny from the court. Although there have been lower courts who found that gays and lesbians are a disadvantaged group and therefor qualifies them for more rigorous protection, Tuesday's vote may show that show that they have plenty of political power.
Brian Brown, president of the National Organization for Marriage, speculated that Justice Kennedy may be swayed by the election results, telling Reuters:
"Kennedy will look at this and think, why create a new culture war and bypass the democratic process to impose gay marriage on the country when this is being worked out on a state-by-state basis?"
Kennedy has a history of being the court's "swing vote".
Digital Journal talked to Ms. Anderson, a marriage equality advocate in Tennessee. Anderson said she did not believe the latest victories show the gay and lesbian community are not still strongly discriminated against. She points to the fact that it is still widely acceptable for the private sector, and even governments, to refuse to hire members of the Lesbian, Gay, Bi-sexual and Transgender (LGBT) community. She also noted that hate crimes against members of the LGBT community have seen a sharp rise over the past 5 years. She went on to say:
"Nine states out of 50 does not reflect an end to the discrimination. There are 41 other states that have outlawed same-sex marriage, even going so far as to amend their state constitution to prohibit gay marriage. It is a civil rights matter, and I believe the justices of the Supreme court need to show the same courage as those who spoke out against other forms of civil rights abuses and discrimination in the past."
Justice Kennedy wrote the majority opinions in the 2003 Lawrence v. Texas case, a case which struck down a Texas law criminalizing gay sex. He also wrote the 1996 Romer v. Evans opinion that ruled a Colorado constitutional amendment banning the passage of laws aimed at protecting gays and lesbians was unconstitutional.
Evan Wolfson, the president of Freedom to Marry, told the New York Times Kennedy may have an eye on history. He referred to the 1896 Plessy v. Ferguson court ruling said “separate but equal” facilities were constitutional, as well as the 1954 Brown v. Board of Education decision, saying:
“[Does he] want to be Plessy or Brown?”