Interesting maps to compare

[mmcirvin]

Well, the 2012 election put to rest once and for all the idea that Americans will never vote to legalize same-sex marriage. In that light, it's interesting to compare these two maps from Wikipedia:

Legal status of same-sex marriage in the US, by state
Public opinion of same-sex marriage in the US, by state

Public opinion is way out ahead of the law. In California, Oregon, Colorado, Michigan, Ohio, and Florida, there's majority public support for same-sex marriage and a constitutional ban. That's a substantial chunk of the country. In the latter three, the bans are so strong that they also prohibit civil unions.

It was always pretty clear that the great wave of state-constitutional bans in 2004-2008 was a rear-guard action to lock in opposition before it evaporated, but I didn't expect it to happen so quickly. The wave of SSM legalization will probably slow down a bit in the near future just because of the greater procedural difficulty of amending state constitutions.

Comments

[mmcirvin.livejournal.com]

My guess is they'll stay as safely behind the public-opinion curve as they can. They may well overturn Section 3 of DoMA, so that legal state marriages get federal recognition. They'll leave Section 2 alone.

On Prop. 8, they'll either uphold it, or overturn it on narrow grounds basically applicable only to California. I can't imagine this Court declaring all state bans federally unconstitutional.

[jwgh]

It seems weird that they took the cases on at all, though, if they weren't at least thinking of doing something pretty radical. In the Prop 8 case in particular they could have just let the lower court's ruling stand.

[mmcirvin.livejournal.com]

I think that denying cert for all the DoMA cases would create a terrible mess, in which marriages get federal recognition in some circuits but not others. They had to take on at least one, and the one they picked was probably one of the most blatantly unjust ones, in which a widow had to pay inheritance tax on shared property when her wife died. That's an encouraging sign. (Though I suppose it could go disastrously wrong and they could just declare the inheritance tax unconstitutional.)

Prop. 8 is another story, since the circuit-court ruling was so narrow and applied to no other state's situation; denying cert would have been a perfectly reasonable outcome. That might suggest they want to negate that decision and uphold Prop. 8. But it may just be that they don't know how they're likely to rule, but felt the issue was important enough to deserve Supreme Court consideration one way or the other.