It seems increasingly to be a world turned upside down these days in the nationwide quest for marriage equality. This is true even here in the Tar Heel state, where during a primary election in May 2012, a plurality of voters approved a constitutional amendment banning same sex marriages and civil unions in this state (even though they were already prohibited by state law). Some of the reasoning put forward by the amendment’s backers included the fear that the state was not prepared to have to deal with same sex couples who married in another state before moving to North Carolina and bringing their legal baggage with them, including demands for legal rights and recognition.
As it turns out, amendment supporters were absolutely right, but their shortsighted and history-defying efforts to stop the flow are akin to sticking fingers in a leaky dike. The Triangle region especially has proven to be a demographic magnet as the economy improves, with increasing numbers of gays and lesbians arriving in search of educational and employment opportunities, including in the military, and expecting equal rights under the law. These new North Carolinians join us natives and longtime residents in comprehending the dizzying events of the last year and a half, in which marriage equality became a reality in a number of states, sixteen to be exact, along with the District of Columbia and various sovereign Indian nations.
So what does this have to do with North Carolina? As Justice Antonin Scalia rightly noted in his dissent from the majority opinion striking down Section 3 of the Defense of Marriage Act last June, the Court’s ruling would have a domino effect that would eventually topple all state statutory and constitutional bans on gay marriage.
This process began in this state last October, when Buncombe County Register of Deeds Drew Reisinger issued marriage licenses to ten same-sex couples in the gay oasis of Asheville, without certifying them, because he believed he was denying upstanding citizens due process of law. These actions complemented those of the ACLU, which is suing the state over the constitutionality of the anti-marriage equality amendment.
These actions failed to garner much, if any, national coverage, but they represent key steps in a strategy that in all likelihood will result in a domino effect of rulings that will render marriage inequality a thing of the past – much in the way that the 1967 Loving vs. Virginia case did away with laws prohibiting interracial marriage.
Last week’s events in Utah set up another one of Scalia’s dominoes. In ruling on the lawsuit filed by three gay couples challenging Utah’s constitutional amendment defining marriage as solely between a man and a woman, U.S. District Court Judge Robert Shelby cited Scalia’s dissent with unmistakable irony in his ruling that struck down the amendment for violating gays’ and lesbians’ constitutional rights.
Though Justice Sotomayor referred the state’s request for a stay on Shelby’s ruling to the entire Supreme Court, which subsequently granted it, this should not be taken as a significant departure from the cautious rulings of this past June, when a five person majority effectively allowed California’s infamous Proposition 8 to be invalidated, but declined to issue a broader ruling that would have invalidated all state bans on gay marriage. Instead, the justices will likely let the federal courts do the work, as dominoes of marriage inequality are put into place and toppled, creating a critical mass of legal opinion on the question of state vs. federal rights on the question of marriage.
So how will all of this go down? While plenty of wild cards remain, it should be noted that no federal court has yet upheld a state law or amendment prohibiting gay marriage. Instead, the body of legal precedent remains the rulings in Massachusetts in 2004, Iowa in 2009, New Jersey and New Mexico in 2013, and perhaps Utah in 2014 when the 10th Circuit Court of Appeal considers the constitutionality of Judge Shelby’s ruling, as well as Ohio and Pennsylvania.
Ultimately, when enough states have been sued, and federal district and appellate courts have made their rulings, the Supreme Court may avoid ever having to take on another gay marriage case by simply allowing the growing mass of lower court rulings to stand, much as they did in their ruling on California’s Prop 8.
So what about North Carolina? Given the current political climate in Raleigh it remains fruitless to hope for any meaningful progressive legislative changes anytime soon, so all we can do is watch the dominoes of marriage inequality fall in other states and hope that our own day in court arrives sooner rather than later.
Dr. Charles Beem is an Associate Professor of History at the University of North Carolina at Pembroke.