From the courtroom to the football field, it has been a historic week for gay rights in the United States.
In a series of court rulings across the country, judges have either struck down or appear poised to strike down same-sex marriage bans in several states. This past Friday, an Arkansas judge ruled that state’s ban void. On Wednesday, a federal court judge in Idaho followed suit. Another half-dozen states have seen similar rulings, which are now before the appeals courts.
The rulings are illustrative of a wider shift in the country’s ongoing dialogue over gay rights in the past few years. Many of the bans being struck down today were once ushered in with overwhelming public support.
Rarely do gay rights take centre stage in mainstream U.S. culture to the extent that they have this week. Even as the a series of historic rulings on same-sex marriage were being issued, a massive portion of the country’s TV viewers were watching another watershed moment for gay rights – this one taking place during the NFL’s National Football League’s annual draft.
Normally, the public’s focus is predominantly on the first players drafted. But this year, the highest-profile draftee was the young man picked 249th overall: Michael Sam, the first openly gay professional football player in the United States.
At the moment of Mr. Sam’s selection, ESPN broadcast footage of the athlete, overcome with joy, kissing his boyfriend – footage almost nobody would have expected to see on the country’s leading sports network. A week later, Mr. Sam is still arguably the American sports world’s top story.
For years, beyond the cultural bombshells that have forced the United States to rethink its views on gay issues, the country’s slow but seemingly inevitable march toward full recognition of same-sex marriage has mostly had ballot measures for milestones. Many of the laws prohibiting same-sex measures came in the form of popular votes. And for a time, it appeared those measures would be overturned using the same mechanism.
But in the past year, the battle over same-sex marriage rights has increasingly been fought – and, for supporters of the institution, won – in the courtroom rather than the voting booth.
“Attitudes of Americans toward same-sex marriage have changed, and the judges are not ignorant of that,” said Carl Tobias, a professor at the University of Richmond’s School of Law in Richmond, Va.
For some elected officials, the issue of same-sex marriage rights is all but settled. Oregon’s attorney-general, currently facing a lawsuit aimed at overturning the ban on same-sex marriage in the state passed 10 years ago, hasn’t even bothered mounting a defence.
“The only objection, the only push back that I had in bringing this lawsuit was from the gay groups,” said Lake Perriguey, a Portland-based lawyer who has become perhaps the central figure in the ongoing fight to make Oregon the 18th state to fully recognize a gay couple’s right to marry.
“If that is the push back you’re getting,” he said, referring to gay activists who want the issue settled at the ballot box, “you’re in a really good position.”
The latest onslaught of court cases aimed at legalizing same-sex marriage is, in large part, a direct result of United States v. Windsor, a Supreme Court case decided in June, 2013. In a 5-4 ruling, the court largely struck down the Defense of Marriage Act, a 1996 law that essentially banned same-sex marriage. Since then, a slew of lower courts have relied on the Supreme Court ruling to strike down similar provisions across myriad states.
In Portland, a month after the Supreme Court ruling, Mr. Perriguey asked for a meeting with Ellen Rosenblum, Oregon’s attorney-general, to let her know he would file a lawsuit to push for same-sex marriage in the state.
Ms. Rosenblum, it turned out, had no objections. To Mr. Perriguey’s surprise, the day after he filed his case in October, she ordered Oregon’s state agencies to begin recognizing out-of-state gay marriages. In a court filing, she indicated the state agencies responsible for upholding Oregon’s ban would simply not do so.
“Rather, they will take the position … that the ban cannot withstand a federal constitutional challenge under any standard of review,” Ms. Rosenblum wrote.
Indeed, the chief opposition to Mr. Perriguey’s lawsuit came from some of Oregon’s gay-rights groups. In recent months, those groups had worked tirelessly to collect enough signatures to put the issue of same-sex marriage back on the ballot this coming November. Many activists were worried that, should the issue be settled in court rather than through the ballot box, opponents of same-sex marriage would argue that voters’ rights had been circumvented.
Mr. Perriguey, on the other hand, specifically wanted the courts, rather than the voters, to make the final decision. According to him, Oregon has put some 35 gay-rights-related issues to a public vote in the last 30 years or so.
Two weeks ago, an Oregon court was set to hear opening arguments in the case – although, given both sides’ agreement, there were none to be heard. However, at the last minute, a Washington-based group called the National Organization for Marriage (NOM) filed a motion to intervene in the case.
“We spent some time trying to find somebody in-state to intervene, but quite frankly, people were scared,” said John Eastman, NOM’s chairman. He said many opponents of same-sex marriage were worried their businesses and livelihoods would be targeted if they made their opposition public, pointing specifically to the recent case of Brendan Eich, the former CEO of technology firm Mozilla, who stepped down under pressure after it became known he contributed to a campaign to ban same-sex marriage in California.
Mr. Eastman called the Oregon attorney-general’s decision not to mount a defence “unethical,” saying she has an obligation to do so. “Our adversarial process in this country is adversarial for a reason.”
On Wednesday, the presiding judge in the Oregon case denied NOM’s motion to intervene. The organization plans to appeal.
Even though the tide appears to be turning in many states in favour of permitting same-sex marriage, gay rights broadly in the United States still differ wildly depending on region. Late last month, Human Rights Watch called on the state of Louisiana to repeal its “crimes against nature” law. Enacted in 1805, the law criminalizes oral and anal sex. Despite being largely unenforceable on constitutional grounds, the law remains on the books.
However, next year may see a significant change in the fragmented state of same-sex marriage rights in America. Prof. Tobias of the University of Richmond notes that it is highly likely one or more of the current same-sex court cases, including Oregon’s, may find its way on appeal to the Supreme Court.
“It could be in 2015 that the Supreme Court says that these bans are invalid, and then what has been piecemeal so far won’t be piecemeal any more.”
Ironically, the man leading the charge to overturn the ban in Oregon has no strong feelings about the institution of marriage itself.
“I could care less about marriage, but liberty is great,” Mr. Perriguey said. “I think we’ve seen enough episodes of Glee that it’s okay to like gay people now and accept them as human beings.
“People can say the word gay now, and it’s not a whisper.”Report Typo/Error
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