Back in 2009 I wrote an article in the Journal entitled: “Same sex unions: Not if but when.”” At the time the Guam Legislature was considering Bill 185 which would have allowed for same-sex civil unions on Guam. Although Bill 185 went nowhere I pointed out that opposition to gay marriage was fading at a steady rate nationwide and opined that “”for those opposing same-sex unions the battle is already lost. Whether they like it or not change is going to come. It is just a matter of time.””
I received some negative feedback about that article. Some including one of Guam’s esteemed legislators said that it was presumptuous to proclaim a victor in the culture wars; and they insisted that traditional values would ultimately carry the day. However my prognosis seems to be on track to vindication – some three and a half years later – as opposition to same-sex marriage seemingly collapses before our eyes.
Every recent public opinion poll confirms that the tide has indeed turned on the issue of same-sex marriage. Nevertheless 40 of the 50 states still continue to outlaw gay marriage. It is against this backdrop that the U.S. Supreme Court recently considered the so-called “”gay marriage”” cases. However no matter how the high court ultimately rules on the two judicial battles now before it it is increasingly apparent that the opponents of gay marriage are going to lose the war.
In fact from listening to the court arguments last month it would seem that the opponents of same-sex marriage are now almost completely out of ammunition.
Gay marriage is already a fact in substantial portions of the country such as in New York Iowa and Massachusetts yet the sky has not fallen there. While opponents have had their day in court in California and elsewhere they have thus far been unable to marshal any persuasive evidence that allowing same-sex marriage poses any palpable threat to non-gay marriages the institution of marriage or society in general.
Apparently the only arguments opponents have left is the state interest in regulating “”procreation”” and the federal interest in a uniform definition of marriage. However as the Supreme Court Justices pointed out procreation hardly justifies barring gay unions as long as other “”non-fertile”” persons – such as couples older than 55 – are allowed to wed.
Uniformity is a more plausible concern. However when Congress passed the so-called “”Defense of Marriage”” Act it was not concerned with uniformity but instead sought as Justice Kagan pointed out “”to express moral disapproval of homosexuality.””
Nevertheless the Supreme Court is hesitant to overrule 40 state statutes and constitutional provisions proscribing same-sex marriage. They’d rather let the political process take its course. In fact the Supreme Court has a history of waiting to act until only a minority of intransigent jurisdictions refuses to change. That is why the Court did not outlaw bans on mixed-race marriages until 1967 and on “”sodomy”” until 2003. It is obvious which direction the country is taking but the court is loath to get ahead of the curve.
Accordingly the Supreme Court will likely punt in the Proposition 8 case declining to decide whether there is a fundamental right to same-sex marriage in favor of a narrow ruling that essentially leads to its legalization in California but not elsewhere.
On the other hand they will likely invalidate the DOMA. However they will probably do so based on the narrow “”states rights”” ground that policing the institution of marriage has never been a federal concern.
Thus the struggle over same-sex marriage will likely return to the individual states and territories. Yet as I posited back in 2009 the question is not “”whether”” there will be change but “”when?”” Will Guam choose to resist change or to be a pioneer on the cutting edge of change? Only time will tell.
– R. Todd Thompson is a partner in the law firm of Mair Mair Spade & Thompson. He can be reached at [email protected] This information is not in- tended as a substitute for consultation with your own legal counsel.