How gay marriage became legitimate

Thirteen states now authorize gay marriage, as do fifteen foreign countries. The first state to do so was Massachusetts, in 2004. Next were California and Connecticut in 2008. Six of the thirteen have authorized it within the last twelve months. Republicans remain strongly opposed, and the Supreme Court is unlikely for some time to force homosexual marriage on states by declaring it a constitutional right. That would be one bombshell too many. The most the Court is likely to do (how likely I don’t know) is to force states that do not allow homosexual marriage nevertheless to recognize such marriages made in states that do allow it. Most states recognize marriages made in another state as valid under that state’s law even if not valid in the state asked to recognize those marriages. (Maybe the other state authorizes first cousins, or thirteen-year-olds, to marry and the state asked to recognize the marriage does not allow its own citizens to make such marriages.) The Supreme Court may decide not to allow the state to make an exception for homosexual marriages.

By invalidating the denial of federal marital benefits to homosexual marriages, the Windsor decision has increased the value of marriage to homosexuals: that is probably the biggest impact on the homosexual-marriage movement that the Supreme Court has had. Goodridge v. Department of Public Health, the decision by the Supreme Judicial Court of Massachusetts in 2003 that created a right to homosexual marriage (effective the following year) as a matter of Massachusetts constitutional law, may have had a greater impact on the homosexual-marriage movement than any U. S. Supreme Court decision, including Lawrence, although as Klarman explains, Goodridge provoked a backlash. It is too soon to tell whether Windsor will.

All in all, the judicial role in the rise of homosexual marriage seems to have been quite modest. Probably the courts have done little either to accelerate the trend in acceptance of such marriage or, through backlash, to retard the trend. In retrospect, the growing acceptance of homosexual marriage seems a natural consequence of the sexual revolution that began in the 1960s rather than an effect, even to a small degree, of litigation. That should come as no surprise when one thinks of another significant social and cultural development in America in the same era: the virtual disappearance of discrimination against Jews, Catholics, Irish Americans, Italian Americans, and Asian Americans, which also owed very little to litigation.

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