AUDASE

It's Over

Gay Marriage

Josh Mershall Talking Points Memo

Since the Supreme Court ruling in June, the writing has been on the wall for banning of marriage rights for gay and lesbian couples in the United States. Since June the number of states with marriage equality has jumped from 12 to 18. But last week's lower court decisions in Utah and Ohio leave little doubt that the political fight over gay marriage is now essentially over and that gay marriage will be the law of the land in every state in the country in the pretty near future.

The fact that gay and lesbian couples are now lining up to get married in Utah of all places - arguably the most conservative state in the country - might tell you this on a symbolic level. But the logic that points to the end of the political fight over gay marriage is more concrete, specific and undeniable.

Utah, rightly, got the most attention. But there were two cases last week. The other one in Ohio dealt with a much narrower question: whether the state had to recognize gay marriages in the issuance of death certificates. But both cases rested on the same essential premise: that if the federal government can't discriminate against gay couples, states - by definition - cannot either.

As Judge Timothy Black put it in the Ohio case: "The question presented is whether a state can do what the federal government cannot -- i.e., discriminate against same-sex couples ... simply because the majority of the voters don't like homosexuality (or at least didn't in 2004). Under the Constitution of the United States, the answer is no."

Both judges, perhaps with an element of trolling or humor, cited Justice Scalia's furious dissent in United States v Windsor, in which he claimed that the Court's decision to overturn DOMA would lead logically and inevitably to overturning every state gay marriage ban in the country.

Now, this might all be written off as the work of two federal trial judges. But the tell is in the response of the 10th Circuit, one of the country's more conservative. When Utah appealed to the 10th Circuit to block further gay marriages until its appeal could be heard on the merits, the judges said no. Because the two standards for such a denial are 'irreparable harm' and likelihood to prevail on appeal, the appellate judges - one Bush appointee, one Obama appointee - seemed to be hinting that Utah is likelihood to lose.

In other words, the inexorable Scalia logic appears clear to them too.

Now there are some conceivable federalism grounds where you could maybe eke out a reason why the Constitution bars the federal government from doing something but allows it to states. But it's a big stretch and probably an impossible one in a country where opposition to same sex marriage is declining rapidly every year.

There's also the real world reality that the 10th Circuit denial of a stay seems certain to guarantee a pretty substantial population of same sex couples in Utah by the time the appellate Court actually comes to a decision.

In this sense - and not to be overly dramatic - it's almost reminiscent of the Fall of the Berlin Wall - when actions on the ground, literally on the ground, swept a lot of details and technicalities before it and presented authorities with faits accompli, which they were likely to accept eventually, much more rapidly than they would have preferred.

So yes, this will percolate a bit, as they say. Decisions will come up through the individual Circuits. In pretty short order, the Supreme Court will be forced to revisit the issue. And their logic in the Windsor case will join forces with the march of public opinion to make it almost impossible for them not to issue a broad ruling which invalidates every gay marriage ban in country.

I think everybody, on each side of the issue, has realized for the past two or three years that it is only a matter of time until this happens. But the decade or so of different policies from state to state now appears quite unlikely. I don't want to end without noting that a lot of lawyering remains to be done. Nothing is ever certain. And even when it's all but certain it's still not easy. But I see little way to look at the last week and not conclude that gay marriage will be the law of the land in every state in the country in the near future. Probably during the Obama presidency and maybe sooner still.