What are the prospects for gay marriage in 2014? On balance, almost certainly positive. At the end of 2013, nearly 40 percent of U.S. citizens lived in the 18 states and District of Colombia that recognize same-sex marriage in some form. This number will almost certainly be higher at the end of 2014. The reason: a raft of upcoming court decisions in more than a dozen states. There may be some gains for same-sex marriage by the ballot box, though probably substantially fewer than last year, which saw several states recognize gay marriage through legislation or referendum. Same-sex marriage advocates have simply run out, for the present, of the sort of liberal, Democrat-dominated states that, politically speaking, represent “low hanging fruit.” The action is now, by and large, in the courts.
Far from closing the subject, the major Supreme Court decisions of last year — notably the one striking down the Clinton-era Defense of Marriage Act — have led to an explosion of court cases. This is hardly surprising. The decisions, as historic as they were, left fundamental questions unanswered, chief among them are a) what obligations, if any, do states have to recognize same-sex marriages that are legal in other states and b) whether there exists a fundamental constitutional right to gay marriage. For opponents of same-sex marriage, last year’s court decisions opened a legal Pandora’s Box; for supporters, the decisions created new avenues to extend marriage equality through litigation. The Supreme Court is probably not keen to revisit same-sex marriage so soon after the major decisions of 2013. But it may have no choice, as the various court cases work themselves higher and higher in the appeals process.
This judicial tempest is occurring against a backdrop of a sea change in public support for gay marriage. Support has grown, in just a few years, from a distinctly minority point of view to one held by a plurality of Americans. It is striking to recall that President Obama only endorsed gay marriage in May 2012; less than two years later, support for same-sex marriage has become the de facto position of the Democratic Party.
A sizeable number of Americans — older, more conservative and more religious — continue to oppose same-sex marriage. So does, by and the large, the Republican Party, which controls the U.S. House of Representatives and dominates politics in many southern and western states. It is important to recall that 33 states still have bans against same-sex marriage on the books. These bans — most enshrined in state constitutions — represent a huge practical impediment to legalizing same-sex marriage. We may discover this year just how legally vulnerable these bans are.
Joe Barnes is the Baker Institute’s Bonner Means Baker Fellow. From 1979 to 1993, he was a career diplomat with the U.S. Department of State, serving in Europe, Africa, the Middle East and South Asia.