Roosevelt Institute | Cornell University

The Homosexual Agenda: Is the Supreme Court the Arena of Last Resort?

By Alexander ChakrinPublished April 26, 2014

Gay marriage advocates should continue to take broad strategies to achieving marriage equality. Popular support for marriage equality is essential for the advancement of the movement, regardless of whether or not the Supreme Court rules in favor of a right to marriage.

In 2013, the Supreme Court overturned the Defense of Marriage Act, which had previously defined marriage as an institution solely reserved for heterosexual couples. This has led to successful gay marriages across the country. Recently, U.S. district courts in Utah, Oklahoma, Kentucky, Virginia, Texas, Michigan, and Ohio have declared that state constitutional amendments banning same-sex marriage violate the Constitution of the United States. In the wake of United States v. Windsor, there is great optimism that gay marriage will eventually become legal under federal law through the courts. However, this optimism may be a bit premature.

Currently, for advocates of gay marriage, hope for nationwide marriage equality rests upon Anthony Kennedy’s shoulders. However, in the Hollingsworth v. Perry case, according to SCOTUSblog, “center-vote Justice Anthony Kennedy showed no enthusiasm for a broad ruling that would strike down the many state laws and constitutions that still embrace the traditional limits on marriage.” It is unknown how the Supreme Court would have ruled if they had determined that the Sponsors of Prop. 8 had standing to sue. As a result, it would be unwise to continue to see the courts as the only means towards achieving a national right to marriage.

At the moment, the movement to legalize gay marriage is at a crossroads. Gay marriage has been legalized in 17 states, through the state courts, state-wide referendums, and state legislatures. However, the remaining fruits of marriage equality are no longer low-hanging. 29 of the 33 states that currently ban gay marriage do so through constitutional amendment. This means that in order to legalize gay marriage, new constitutional amendments must be approved by the voters and the states. The ballot box rather than the state house will be the new battlegrounds. Popular support will be important for the future of the issue.

The 2014 elections will be the start of this trend. In Oregon, gay marriage will be on the ballot. However, 2016 has slated to be a watershed year for gay rights. In Arizona, groups are  preparing to get a new referendum started in 2016. Nevada and Colorado may also be voting to overturn their state constitutional ban on gay marriage. On the opposite end of the spectrum, Indiana may be voting on a constructional ban on gay marriage.

What Ted Olsen demonstrated in the Windsor case was the power of persuasion. Courts’ decisions to act or not act will not decide the future of gay marriage. As long as opponents have the resources to do so, gay marriage will continue to be a political question decided in the hearts and minds of citizens.

In the next few years, there are important votes which will decide the fate of gay marriage in the United States. These votes will not be at state houses or in court rooms, but in living rooms. Citizens will have to decide whether or not they want to live in a country where people who are attracted to members of the same sex are denied access to the institution of marriage. Gay marriage opponents continually fail to emphasize a key element of their argument: LGBT individuals campaigning for the freedom to marry are actually the greatest defenders of the institution of marriage itself. Over time, people will listen to a good argument no matter how counterintuitive it may be people at first. Change and logic flow in the same direction.