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Same-Sex Marriage: The Debate Beyond SCOTUS

On April 1, the New Yorker‘s Jeffrey Toobin declared that, while the outcome of the cases currently before the Supreme Court is uncertain, the eventual fate of marriage equality is not in doubt: “Though the battles continue, the war is over.”

The piece reminds us that, in the Court’s 2003 decision ruling anti-sodomy laws unconstitutional (Lawrence v. Texas), the majority asserted that it was making no statement on same-sex marriage. In his dissent, Judge Scalia disagreed, lamenting that the decision would open the door to marriage equality:

A decade later, it’s clear that Scalia was right. Once a society decides that the law must treat a group of people equally in one area of life, it becomes harder–and, eventually, impossible–to justify discriminating against them in others. If gay people can’t be prosecuted for being gay, then they shouldn’t be fired for being gay, either. If they can’t be fired, then they shouldn’t be denied custody of children. And so on, to the issue of marriage. Each of these steps is incomplete under current law, as well as in the real world, but the direction they are taking is unmistakable. This week, we will begin to find out whether the Justices will impede or accelerate that process. But, at this point, not even the Supreme Court can reverse the march toward equality.

The speed of change in public opinion has been remarkable. This writer points to a recent poll in which 33% of respondents had changed their minds on the issue in the last ten years (clearly, most of them in a more tolerant direction). By comparing the history of sentiment on same-sex marriage to that of interracial marriage, the rapidity of progress becomes even more clear.

According to this post on ThinkProgress, in 1972, 60% of Americans opposed “marriage between blacks and whites,” while 29% approved. It took until 1991—almost twenty years—for a majority of Americans to support interracial marriage, even though it had been legal since 1967. By contrast, this graph of Gallup polls shows that same-sex marriage covered the same distance in less time, even though it was not yet legally recognized (with scattered exceptions, starting in 2004):

Around the country, the debate on marriage equality is far from settled. In an interview, a Republican congressman from Arizona with a gay son made clear that he and Senator Portman are not on the same page; the Arizonan still does not support his son getting married. Said Rep. Matt Salmon: “[I]t doesn’t mean that I don’t sympathize with some of the issues. It just means that I haven’t evolved to that station. Rob Portman apparently has.”

Defending the same position, conservative op-ed stalwart Bill Kristol called people like Portman “pathetic,” and bemoaned the belief—shared by an increasing number of Republicans—that views on the matter should evolve. No matter what the Salmons and Kristols of the world think, the demographic tide is turning against ignorance.

The fight for civil rights does not end in the court of public opinion. In most states, firing an employee for his or her sexual orientation is still legal. Contact The Harman Firm if you have any questions about anti-discrimination laws or other employment regulations.

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