Kyle Kirkup is a 2013 Trudeau Scholar at the University of Toronto Faculty of Law. Brenda Cossman is a professor of law at the University of Toronto Faculty of Law.
On Tuesday, the United States Supreme Court is set to hear oral arguments in a landmark case, one that could bring same-sex marriage to every state in the union by the end of June.
Many legal observers are already predicting that two members of the Court's conservative block – Chief Justice John Roberts and Justice Anthony Kennedy – will vote with the liberal wing to form a majority.
As controversial as same-sex marriage may be in many parts of the U.S., Americans in all 50 states may need to prepare themselves for a new social reality this summer – because there are simply no longer any legitimate legal justifications against it.
In the 18 countries that have already recognized same-sex marriage, including Canada, the sky has not fallen. For most Canadians, same-sex marriage now seems unremarkable and, for some, even banal. As we move into the second decade of same-sex marriage in Canada, LGBT advocates are grappling with other pressing issues. These include redressing the daily human rights abuses experienced by trans people, challenging HIV non-disclosure laws, and introducing educational curricula that accurately reflect the diversity of Canadian families.
Just a decade ago, arguments against LGBT equality were still being framed in the language of religion, morality, sin, and unapologetic homophobia. These arguments no longer have any legal sway. Unlike the goals of promoting equality and dignity, preventing sin and promoting homophobia are no longer considered to be legitimate state objectives.
But, increasingly, opponents of same-sex marriage frame their arguments less in terms of the sin of homosexuality and more in terms of the fundamental importance of heterosexual marriage. Same-sex marriage, they say, will undermine heterosexual marriage. The argument goes something like this: Marriage is important, particularly for children, heterosexual couples should get married before they have children, same-sex marriage will devalue marriage, fewer heterosexual couples will get married, and the children that they will now have outside of marriage will suffer.
This is the best argument that the opponents of same-sex marriage have – and it is specious at best. Yes, marriage is important to many people. That is why some same-sex couples want access to it. But the data does not show that children raised by heterosexuals do any better than children raised by same-sex couples.
Two of the plaintiffs in the U.S. Supreme Court case, April DeBoer and Jayne Rowse, a lesbian couple from Michigan, want to be married so that they can both be recognized as legal parents to their three adoptive children. Michigan does not allow unmarried couples to jointly adopt, and so April is the legal mother of one of their children and Jayne is the legal mother of the other two. After a near-fatal car accident, the couple realized that, if one of them had died, the other would not have a legal right to all three children.
The opponents of same-sex marriage have tried to argue that allowing couples like April and Jayne to marry will make heterosexual couples less likely to marry. There is no evidence to support this claim. None. Since 2012, the number of states recognizing same-sex marriage has quadrupled. Currently, 37 states and the District of Columbia recognize same-sex marriage. Heterosexual couples are not abandoning marriage in equal measure – or in fact, in any measure – in states that have recognized same-sex marriage.
Public opinion is changing rapidly. In a 2014 Gallup poll, the majority of Americans indicated that they supported same-sex marriage.
In fact, even conservatives are changing their minds. A 2013 Washington Post/ABC News poll found that 52 per cent of Republicans and Republican-leaning independent voters ages 18 to 49 back same-sex marriage – the highest percentage ever recorded – with 81 per cent of 18- to 29-year-olds supporting overall. From the Reformation Project, a nationwide network of pro-gay evangelicals, to the Marriage Opportunity Council with the likes of David Blankenhorn, President and founder of the Institute for American Values, social and religious conservatives are changing their minds on same-sex marriage. They have realized that there is actually nothing radical about same-sex marriage at all. Indeed, they are recognizing that it is a cornerstone of the future of marriage.
Legal developments have tended to reflect these changing attitudes. Two years ago, the U.S. Supreme Court issued its groundbreaking decision in United States v. Windsor, which many observers see as paving the road to same-sex marriage. The decision struck down a key part of the Defence of Marriage Act that denied federal marriage benefits to same-sex couples.
If all goes according to plan, the U.S. Supreme Court is poised to issue a landmark marriage equality decision this June. And whatever the outcome, same-sex marriage is already winning, as many of its one-time opponents abandon their positions and embrace a new era in the history of marriage equality