By Allie Alexy
This year, the Supreme Court has decided to take on one of the most controversial and talked about issues in our time: same-sex marriage rights.
It is a common misconception that the issue of gay rights and homosexuality is relatively new. While it has become much more prevalent, the issue has existed for centuries. Public opinion on homosexuality and same-sex marriage has changed drastically throughout the last few decades and perhaps most significantly in the last twelve years.
Groups from Michigan, Tennessee, Kentucky and Ohio sued their states, questioning whether the bans of same-sex marriage or refusal to recognize legal same-sex marriage that occurred in other states, where it is legal, are constitutional. The Sixth U.S. Circuit Court of Appeals upheld the state laws regarding the same-sex marriage bans.
In each of the four cases, the plaintiffs stated that state laws banning same-sex marriage violated the Equal Protection Clause and Due Process Clause of the 14th Amendment. One group also brought claims under the Civil Rights Act.
The Sixth Circuit decided that state laws did not violate the 14th Amendment rights. The court also stated that they were unable to make any changes due to the Supreme Court’s decision in the 1972 Baker v. Nelson case.
In this case, the Supreme Court decided that same-sex marriage laws were not decisions to be made by the federal government, but by individual states. Since four other circuit courts of appeal decided that there was a constitutional right to same-sex marriage, making a circuit-split, the Supreme Court took on the cases for review.
The Supreme Court required all parties to answer the following two questions in their briefs: “Does the 14th Amendment require a state to license a marriage between two people of the same sex?” and “Does the 14th Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state?” While it is still unknown how the Supreme Court will rule, with their final decision coming this April, conversations on the topic have grown more frequent.
Federal Circuit Judge Jeffrey Sutton writing in the court’s opinion said, “This is a case about change– and how best to handle it under the U.S. Constitution. From the vantage point of 2014, it would now seem the question is not whether American law will allow gay couples to marry; it is when and how that will happen.”
Throughout the 18th and 19th centuries, homosexuality was a hidden and a taboo subject. The topic, if discussed, was not mentioned in public.
When the 1920s rolled around, society became more accepting of gays, especially in highly populated areas. This era of acceptance ended quickly, ushering in a harsher time for gays.
This change in public opinion is likely due to the gay leaders changing their campaign focus from “rights” to “love and commitment.”
In the 1930s the open practicing of homosexuality, if found out, risked imprisonment. Many laws were passed regarding gays and led to homosexuality being labeled a mental illness. The first state to remove these laws was Illinois in 1961. States continued to overturn these laws throughout the next decades, with the last states removing them in 2003 and the U.S. military ending “Don’t Ask, Don’t Tell” in 2011.
The Defense of Marriage Act was passed in 1996, defining marriage as solely between a man and a woman in regards to federal cases. In 2004, Massachusetts became the first state to legalize same-sex marriage. Maine, Maryland, and Washington followed in 2012, becoming the first states to legalize same-sex marriage through popular vote. The Defense of Marriage Act was overturned by the Supreme Court in June 2013, when it ruled that same-sex married couples are entitled to the same federal benefits as opposite-sex married couples.
According to an article by Carrie Woford, for U.S. News, this change in public opinion is likely due to the gay leaders changing their campaign focus from “rights” to “love and commitment”.
Former Justice Department lawyer Ted Olson said in 2010, “If you are a conservative, how could you be against a relationship in which people who love one another want to publicly state their vows … and engage in a household in which they are committed to one another?”
Since 1996, the amount of people in favor of same-sex marriage has grown from 21 percent to 55 percent by the middle of 2014, according to the Pew Research Center. Age is also a determining factor in support. Those aged 18–29 are almost twice as likely (78 percent) to support marriage equality than those 65 or older (42 percent), according to Gallup.
While public opinion has changed drastically within the last decade, it is up to the Supreme Court to ultimately decide what the Constitution has to say about this subject.