Same-sex marriage (SSM)

Part 1: Is same-sex marriage inevitable in every U.S. state?
Current status of SSM. Argument on inevitability based
on history of previous marriage redefinitions.

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History and current status of SSM in the the rest of the world:

The first country to legalize SSM was the Netherlands, in 2001-MAR. Curiously, the first same-sex married couple live in Ontario, Canada. The latter were married in Toronto two months earlier during 2001-JAN, following a "reading of the banns." This is an ancient ritual in which a couple can be married in a church without first having purchased a marriage license. Although the Government of Ontario refused at the time to register their marriage, it was recognized retroactively when a lawsuit made SSMs available in Ontario during 2002-AUG.

As of mid-2013, the countries of the world respond very differently to same-sex marriage:

• Marriage is available and generally celebrated throughout 15 countries: Argentina, Belgium, Brazil, Canada, Denmark, France, Iceland, Netherlands, New Zealand, Norway, Portugal, Spain, South Africa, Sweden, and Uruguay. See a world map. Debates to add the remaining predominately English speaking countries to this list are active as of mid-2013 in the Parliaments of Australia, England & Wales in the UK, and Scotland.
  
  
• Marriage is also available and generally celebrated in a minority of states or cities in Mexico and the United States.
  
  
• In the vast majority of countries in the world, loving, committed same-sex couples and their children are not supported or recognized by by their governments. The couples lack the benefits, status, security, and protections that opposite-sex married couples routinely enjoy. They are treated as mere roommates.
  
  
• In 76 countries (or 78 or 82 depending on how one defines the word "country") ₁ they are considered criminals along with anyone else who engages in same-gender sexual behavior. They can be arrested, charged, tried, and sentenced to jail:

Countries, shown in black, where same-gender sexual behavior is a crime.
Not visible: Jamaica & almost a dozen other Caribbean nations.

• In six countries out of the 76, -- all predominately Muslim -- individuals who are found to gave been sexually active with members of the same gender are subject to being rounded up, charged, tried, and executed. Uganda, a predominately Christian country, may soon be added to this group.

History and current status of SSM in the U.S.:

Back in 2012-OCT, six U.S. states and the District of Columbia had made marriage available to same-sex couples. On election day in 2012-NOV, three more states were added by voters via plebiscites: Maine, Maryland, and Washington State. During 2013-MAY, three additional states were added by state legislatures: Delaware, Minnesota and Rhode Island. Illinois might have been the fourth state legislature to act, except that the legislative session ended before sufficient votes in favor of SSM could be rounded up in the House. Illinois will revisit the SSM bill in 2013-NOV.

On 2013-JUN-26. as a result of the decision of the U.S. Supreme Court in the Proposition 8 case, California has become the 13th state to make SSM available. About 30% of Americans now live in 14 jurisdictions where same-sex couples can marry: [States CA, CT, DE, IA, MA, MD, ME, MN, NY, NH, RI, VT, and WA] and the District of Columbia. About 30% of same-sex couples in the U.S. are now able to marry where they live. Same-sex marriage (SSM) is forbidden by state constitutional amendments in 29 states and by state laws only in 7 states [HI, IN, IL, NJ, PA, WV, and WY]. The state Constitution and marriage laws in New Mexico are silent on the issue. However, for no obvious reason, the state does not allow same-sex couples to marry.

How SSM in all states could be achieved in the future:

If SSM is to be universally available across the U.S. it is probably not going to be achieved by continuing the process of legalizing SSM one state at a time. It might take decades to finally win over the deep South. One measure of the difficulty was seen in Mississippi in 2011. Forty-four years after the Supreme Court ruled in 1967 in Lawrence v. Texas and declared that interracial marriages were legal throughout America, a survey showed that a plurality of Republican voters in that state still thought that interracial marriage should be illegal.

A more likely method would be to win over some more states either by having their legislature amend the state's marriage acts, or by launching lawsuits in state courts. Then a lawsuit could be launched in federal District Court in a state that did not allow SSM. It would be appealed to a Circuit Court of Appeals, and finally to the U.S. Supreme Court. Hopefully, that court would rule in favor of SSM and make their decision general enough to legalize SSM across the country.

However, there is a limit to the number of states that can reasonably be expected to approve SSM. There are six states [HI, IN, IL, PA,WV, WY] that don't have a constitutional prohibition against SSM. SSM might be possible in some of them. But the 29 states with constitutional prohibitions against SSM would take a long time to convert because their constitutional amendments would first have to be repealed before their marriage acts could be amended. That is a time consuming process.

One approach to the question: "Is same-sex marriage in all U.S. states inevitable?" An argument from history:

There have been four instances in the history of the United States to date when marriage has been redefined:

1. Slaves in the 1860's: Until the end of the civil war, slaves could not legally decide to marry. Some slave owners gave their slaves permission to marry, but the marriage vows only promised "until distance do us part," not "until death do us part." The owner could and did break up any of his slave families at any time for any reason by selling a slave as a piece of his property to another owner, perhaps in another state.
   
   Henry "Box" Brown was a slave whose middle name came from his success in mailing himself in a box from Richmond, VA to Philadelphia, PA to gain his freedom. He wrote:

   "No slave husband has any certainty whatever of being able to retain his wife a single hour; neither has any wife any more certainty of her husband. Their fondest affection may be utterly disregarded, and their devoted attachment cruelly ignored at any moment a brutal slave-holder may think fit." ₂

   Eligibility to marry was redefined at the end of the Civil War. Slavery was abolished. Former slaves could enter into marriages with a person and timing of their own choice, subject to racial and age limitations.
   
2. Deaf couples in the early 20th Century: Some states, during the late 19th century, passed laws to prevent profoundly deaf couples from marrying. This was inspired by the eugenics movement who believed that they could improve the population's gene pool through legislation. All of he state laws were individually repealed in the early 20th century.
   
   
3. Interracial couples in 1967: Couples of different races were prohibited from marrying in many states throughout the U.S. By the 1960's, 16 contiguous states in the American Southeast still banned these marriages. The states included Florida and adjacent states to the North and West. The Loving v. Virginia lawsuit in the early 1960's challenged the constitutionality of the Virginia law. The Loving family consisted of a white husband and a wife of native American ancestry. They were legally married in Washington DC but charged with the "crime" of interracial marriage in Virginia where they lived. They appealed their conviction. In 1967, the U.S. Supreme Court determined unanimously that all such anti-miscegenation laws were unconstitutional. Interracial couples became free to marry in any state.
   
   Chief Justice Earl Warren wrote in the Court's ruling:

   "Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival. ... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State." ₃

4. Same-sex couples, starting in 2004: Couples of the same gender first became eligible to marry in Massachusetts. By 2013-JUL, same-sex couples were able to marry in a total of 13 states and the District of Columbia. Eligibility to marry was variously changed by a state court, a state legislature, or a citizen initiative.

Each of the above four redefinitions was motivated by a change in public opinion -- whether it was a rejection of human slavery, or the rejection of the prohibition to marry by deaf couples, mixed race couples or same-sex couples. Change happened when a growing percentage of people viewed a restriction on marriage as unjust, and some took action to overcome the limitation on this "fundamental freedom." This process took centuries in the case of slavery, but has moved much faster for more recent changes. From the history of such conflicts, it would seem that access to marriage by same-sex couples is inevitable in the U.S. as it was in Canada during 2005, and is expected to be in all predominately English speaking countries other than the U.S., perhaps by the end of 2013.

This topic continues in a second essay
with a discussion of arguments of SSM inevitability
in the U.S. based on the federal Constitution, & public opinion

References used:

1. "Erasing 76 Crimes," 76 Crimes, at: http://76crimes.com/
2. Tera W. Hunter, "Putting an Antebellum myth to rest," New York Times, 2011-AUG-01, at: http://www.nytimes.com/
3. Text of "Loving v. Virginia (No. 395) 206 Va. 924, 147 S.E.2d 78, reversed," U.S. Supreme Court, 1967-JUN-12, at: http://www.law.cornell.edu/
4. "US Constitution - 5th and 14th Amendments," findUSlaw, at: http://finduslaw.com/
5. Molly Ball, "Activists Say Gay Marriage Will Be Legal Across America in 5 Years," The Atlantic, 2013-JUN-26, at: http://www.theatlantic.com/

Copyright © 2003 by Ontario Consultants on Religious Tolerance
Originally written: 2003-JUN-25
Latest update: 2013-JUN-30
Author: B.A. Robinson

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