Cennamology Chief Editor
With a federal judge striking down Wisconsin's ban on same-sex marriage, the news passed in a fashion that was sort of under-the-radar.
This is not necessarily a bad thing, quite the contrary actually. In the past, when a court struck down a same-sex marriage ban, the news engulfed the media for the entire day. Now, as more and more states have legalized gay marriage and more and more state bans are being struck down, news involving the death of equality bans has become a common enough occurrence that we are very used to it. In fact, I have even lost track of all of the states whose bans the courts have struck down.
Even though only 19 states plus the District of Columbia officially have marriage equality, this number goes up to 27 if you include states where the striking down of their same-sex marriage bans have been put on hold. For the record (and I had to look this up on the Washington Post website, as there have been so many that I've lost track), the states where the courts have struck down the bans but the rulings are being challenged or pending appeal are Utah, Oklahoma, Texas, Virginia, Idaho, Kentucky, Arkansas, Tennessee, Michigan, and Wisconsin. There are more to come.
These appeals will likely lead to another Supreme Court case dealing with same-sex marriage, a case that will likely legalize same-sex marriage nationwide. It has been about a year since the court cases that struck down the Defense of Marriage Act (DOMA) and California's Proposition 8, the rulings of which led to the lower courts striking down many states' bans. Many other states will also see their bans struck down before the case goes to the Supreme Court and if the way the court ruled in United States v. Windsor (the DOMA case) and Perry v. Hollingsworth (the Prop 8 case) is any indicator, the court will strike down all remaining bans on marriage equality in the country.
This pace is incredible. When my home state of Maryland voted to uphold marriage equality in 2012, I thought it would be another 20 to 30 years at best before nationwide marriage equality is a reality. Now, it appears that it will likely be within the next three years.
As expected, there will probably be some pushback, especially if the Supreme Court is the one that legalizes same-sex marriage. The anti-equality crowd will crow about "activist judges" circumventing the will of the people. The term "activist judge," really makes me laugh. To give you my opinion on the term "activist judge," I'll defer to Bush appointee Judge John E. Jones III who said, "the term 'activist judge' has come to simply mean a judge you disagree with. That's all it means."
Anti-equality groups can decry "activist judges" all they want. I remember after the Perry and Windsor decisions last summer where many anti-gay politicians said that "law should not be determined by unelected judges." Apparently, these politicians are unaware about the presence of judicial review in this country, which we have had since Marbury v. Madison in 1803. If these politicians are still unaware of the court's power to strike down laws that are unconstitutional, which they have had they power to do for over 200 years, I suggest that they go back and read the decision of the case.
The pathetic quest of anti-equality groups to cling on to the miniscule morsel of influence they have left is becoming less and less likely as more state bans are being struck down. One day, the people who were members of these anti-equality groups like the National Organization for Marriage and the American Family Association will be embarrassed to tell their grandchildren about what they were doing as the fight for equality was ablaze. While those who fought for equality will have stories to tell for generations, those who fought against equality will be haunted by their political past.
The lawyers for groups like NOM and the AFA are finding it extremely difficult to find arguments against same-sex marriage rooted in the Constitution, especially as it is now clear that the legalization of same-sex marriage has not interfered with religious freedom. If I were a lawyer, I would have a difficult time rooting anti-equality arguments in the Constitution too, because the fight against equality has always been the antithesis to the U.S. Constitution since the days of our Founding Fathers.
Martin Luther King, Jr. said, "the arc of history always bends towards justice." This has been quoted so many times in the quest for marriage equality that it borders on the cliché, but it is the perfect embodiment of what the eventual result will be: nationwide marriage equality.
The finish line is right around the corner, but despite this progress it is still imperative that pro-equality forces not get complacent. Nationwide marriage equality is inevitable, but the fight must only grow stronger if it is to remain imminent.