Tuesday, January 6, 2015

Updated Marriage Map

Today civil marriages for same-sex couples became legal in Florida.  If we add in Missouri and Kansas (see below), 37 states and the District of Columbia now offer civil marriage licenses to both same-sex and opposite-sex couples.  Basically the number of states where same-sex civil marriages are legal doubled in 2014 after a string of court rulings based on the Windsor case.  One article I read stated that 4 out of 5 Americans now live in a state where same-sex couples can legally wed.  Using 2010 Census data, I came to the figure of 73% of the population living in a state with marriage but those data are 5 years old now.

There are many complications to this story however:

*The US Supreme Court avoided taking up the constitutionality of same-sex marriage bans in 2014.  After a split in appellate court rulings developed after a 2-1 ruling by the 6th Circuit in Cincinnati upheld the bans, the US Supreme Court has agreed to discuss whether to address the question of same-sex marriage bans and the US Constitution.  The Court will decide whether to take a case or pass again on the issue in January.

*Same-sex couples can only marry in a handful of jurisdictions in Missouri, but the state government recognizes these marriages.  Other jurisdictions continue to refuse licenses to couples pending more litigation.

*Neighboring Kansas is also a strange case.  A handful of jurisdictions there issue licenses but the state continues to refuse to recognize these marriages in spite of a ruling striking down marriage bans by the 10th Circuit.  

*Idaho's governor and attorney general are also appealing the striking down of that state's ban.

*Couples were briefly allowed to marry in Arkansas and Michigan.  After the 6th Circuit's ruling upholding Michigan's ban, Michigan's governor rushed to announce the marriages that had already occurred there using legally issued licenses at that time never happened and were void.  Even if that state's ban is upheld in appeal, the retroactive voiding of these marriages is likely to be more litigation.

*All this litigation by state officials seeking to uphold marriage bans is proving costly to states.  As state officials are losing more than 27 cases in 2014 over the unconstitutionality of these laws, they must by law pay the court costs of the citizens challenging these bans.  

I feel that it is likely the US Supreme Court will take up the constitutionality of same-sex marriage bans in 2015 and issue a ruling.  The number of states with and without marriage now closely resembles the lineup of states before major court decisions on interracial marriages and school desegregation.  Most of the states have already adopted the new policies with the usual holdouts in the former Confederacy as well as the 6th Circuit states and the sparsely populated Dakotas and Nebraska remaining.  I should add that Puerto Rico and other US territories are also holdouts.  I predict that by January 2016 civil marriages will be open to both opposite-sex and same-sex couples alike with future generations wondering what all the fuss was about.  

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