The redefinition of marriage to include same-sex couples has mostly been a revolution by a few judges. Will five Supreme Court judges continue that trend and reject a deliberative democratic process to define marriage?
The U.S. Supreme Court will hear oral arguments Tuesday, April 28 on an appeal from the Sixth Circuit Court of Appeals regarding the constitutionality of four state-level gay marriage bans.
Since June 2013, the number of states that legally recognize same-sex marriage dramatically increased from nine and the District of Columbia to 37 states, with Alabama being the most recent addition.
Many have marveled at the rapid increase in states that now have legalized gay marriage and believe the highest court in the land will finish off the remaining 13 bans.
This sudden increase in legalized gay marriage, while perceived as a broad-based grassroots upsurge, is actually the product of a fairly small number of judges overruling the votes of millions.
From 1998 to 2012, majorities in 30 states approved amendments to their constitutions defining marriage as being between only one man and one woman. In these referenda, an electorate comprised of a diverse array of races, genders, political parties, and demographics passed the amendments, at times overwhelmingly.
In response, lawsuits eventually were leveled against all of the state-level bans. By 2013, eight states and the District of Columbia legalized gay marriage. Of those nine, only three of them did so via judicial decision while the other six were via legislative action or a referendum. The first was Massachusetts, whose highest court ruled 4 to 3 in 2004 to strike down their state ban.
In 2013, the Supreme Court ruled 5 to 4 in Windsor v. United States that a crucial component of the Defense of Marriage Act was unconstitutional. In the same session, the highest court ruled 5 to 4 that a lower court ruling striking down California's constitutional ban was to be upheld.
From the Windsor decision until February, lower court judges across the country ruled several state level bans unconstitutional. Many of these decisions were upheld by appellate courts.
During this time period, several states that never voted on an amendment but enacted statutes against gay marriage also had their laws struck down. Among these were Indiana, New Jersey, New Mexico, Pennsylvania, West Virginia, and Wyoming.
Below are summaries by region of the 17 state-level amendments against gay marriage passed by voters that have been struck down by judicial fiat since June 2013. Estimates for number of votes were rounded down.
In 2006, Colorado voters passed Amendment 43 with 56 percent saying yes and 44 percent saying no. The total number of voters approving was approximately 768,000.
In July 2014 two district court judges ruled Amendment 43 unconstitutional. Last October when the Tenth Circuit Court of Appeals ruled Utah's and Oklahoma's bans unconstitutional, the precedent set by the decisions was applied to Colorado's appeal.
April 2005 saw Kansas approve the Kansas Marriage Amendment with 70 percent in support and 30 percent opposed. Approximately 417,000 voted yes. In November 2014, a district court judge ruled the amendment unconstitutional and granted a temporary stay that ended after the U.S. Supreme Court allowed for the stay to expire.
In 2004, Montana voters approved Initiative 96 with 67 percent voting yes and 33 percent voting no. Approximately 295,000 people voted in favor of the amendment. After the Ninth Circuit Court of Appeals upheld the striking down of bans in Idaho and Nevada in October 2014, a district court judge struck down Initiative 96 and placed no stay on the ruling.
Oklahoma voters approved Question 711 in 2004 with 76 percent voting yes and 24 percent voting no. The total number of yes ballots was approximately 1.075 million.
In 2004, 66 percent of Utah voters approved Amendment 3, with 34 percent voting no. The total number of ballots in favor of the amendment was approximately 593,000.
In October 2014, the Tenth Circuit Court of Appeals ruled the bans in Oklahoma and Utah unconstitutional, upholding two lower court decisions, one per state.
In 2006, Wisconsin voters passed Referendum 1, which garnered 59 percent of the ballots cast, totaling an estimated 1.26 million votes. In June 2014, a district court judge struck down Referendum 1 and the following September the Seventh Circuit Court of Appeals affirmed the ruling.
Last October, the U.S. Supreme Court declined to hear appeals for various state level bans, which maintained the striking down of bans in Colorado, Kansas, Oklahoma, Utah and Wisconsin.
In June 2006, voters in Alabama passed Amendment 774 with 81 percent of the vote in favor. Support for the amendment totaled about 697,000. In January a district court judge ruled Amendment 774 unconstitutional, with both the Eleventh Circuit Court of Appeals and the U.S. Supreme Court declining to issue a stay pending appeal.
Florida voters passed Amendment 2 in 2008 with 62 percent of the vote. The number of ballots cast in support of the amendment was approximately 4.89 million. A couple of judges issued localized rulings regarding Amendment 2; one district court judge in August 2014 issued a statewide ruling declaring it unconstitutional. Regarding the statewide ruling, both the Eleventh Circuit and the U.S. Supreme Court denied requests to stay the decision pending appeal.
North Carolina voters passed Amendment 1 in May 2012 with 61.04 percent in support. The yes votes totaled about 1.317 million. Last October, a federal judge struck down Amendment 1, concluding that a Fourth Circuit Court of Appeals decision applied to North Carolina. Another judge in North Carolina issued a similar ruling that October regarding two lawsuits brought in that court.
South Carolina passed Amendment 1 in 2006, with 78 percent of voters saying yes to the ballot initiative. The total number of ballots cast in favor was approximately 818,000. In November 2014 a judge ruled Amendment 1 unconstitutional, granting a temporary stay that the U.S. Supreme Court declined to extend.
Virginia voters approved Question 1 in 2006 with 57 percent of voters in favor and 43 percent opposed. The total of yes votes was approximately 1.325 million. In February 2014, a judge ruled the marriage amendment unconstitutional and the ruling was upheld by the Fourth Circuit Court of Appeals. The Fourth Circuit's decision in the Virginia case in late July of 2014 was then applied also to North Carolina and South Carolina.That October, the U.S. Supreme Court declined to hear an appeal in the Virginia case, along with several other states across the nation.
Alaska passed Measure 2 in 1998 with 68 percent of the vote in support. The total number of ballots cast in favor totaled to about 152,000. Around 16 years later, in October 2014, a federal judge concluded that a Ninth Circuit Court of Appeals ruling overturning bans in Nevada and Idaho applied to Alaska.
In 2008, 56 percent of Arizona voted in favor of Proposition 102, totaling to approximately 1.25 million yes votes. This was a turnaround from a similar ballot initiative that narrowly failed in 2006. Last October, a district court judge ruled Proposition 102 unconstitutional, with Arizona's attorney general declining to appeal the decision.
In 2008, California approved Proposition 8 with 52 percent voting yes and 48 percent voting no. The total number of yes votes was approximately 7 million. In 2013, on the same day that the Supreme Court struck down a key component of the Defense of Marriage Act, the highest court in the land ruled 5 to 4 to deny the appeal made. In the majority opinion, the Supreme Court reasoned that the plaintiffs bringing the appeal lacked standing and specifically avoided the question of constitutionality of state-level bans.
Idaho voters approved Amendment 2 in 2006 with 63 percent of ballots cast on the issue in favor. The total number was approximately 281,000.
2002 saw Nevada voters pass Question 2 with 67.2 percent in favor and 32.8 percent opposed. The total number of yes votes was approximately 337,000.
In October 2014, the Ninth Circuit struck down the bans in Idaho and Nevada, affirming a lower court decision in Idaho but reversing a lower court decision in Nevada.
In 2004, Oregon voters passed Measure 36 with 57 percent in favor and 43 percent opposed. The total number of yes votes was approximately 1.028 million. About 10 years later in May 2014 a federal judge struck down the amendment and granted no stay, immediately applying the ruling to the state.
The Few Over the Many
Since the Windsor decision, well over 23,496,000 votes in 17 states have been declared invalid by the actions of fewer than 30 lower court and appellate judges.
If the U.S. Supreme Court strikes down the remaining 13 state-level gay marriage bans, it will effectively strike down more than 17.1 million additional votes.
Many experts believe that the Supreme Court will declare all state level constitutional bans on gay marriage unconstitutional, likely via a 5 to 4 decision.
If this occurs, in one decision the court will have effectively overruled over 40.5 million votes from 30 ballot initiatives.