Gay Marriage

What's At Stake for Gay Marriage at the Supreme Court? (UPDATED)

Right now, 39 states have legal same-sex marriage recognition, but there's a hitch.

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Map Gay Marriage SCOTUS
reason graphic

CORRECTION AND UPDATE: In a complete mistake, we classified every state where gay marriage recognition was a result of a judge's ruling as potentially being affected by this Supreme Court decision. Several of these states have legal marriage recognition due to a state judge's interpretation of the state's own constitution, completely unrelated to the 14th Amendment argument. We've updated the map to reflect the difference.

And the timing worked out well to update the map. Not long after we posted it, a federal judge in Alabama struck down that state's ban on gay marriage as a violation of the 14th Amendment. We've updated the map to account for the judge's new ruling. Like the other red states on the map, this new decision could potentially be affected by however the Supreme Court rules this summer.

NEXT: William Eskridge on originalism and same-sex marriage

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  1. Polygamy. That’s what’s at stake. The legal arguments make it impossible to keep it illegal. The slippery slope people were right.

    That said, I don’t give a fuck, except to say that one spouse should be plenty.

    1. Polygamy should be at stake. But I don’t think it is. The justices are not going to affirm gay marriage out of any sense of principle. They are going to do it, if they do, because they like gays. They don’t like polygamists and thus are very unlikely to ever grant them marriage rights no matter what the outcome of this case.

      What matters in these sorts of cases is how popular the plaintiff class is with the judicial class. That is it.

      1. Ooh…so cynical! I like it.

      2. Perhaps, but I don’t think they’re going to focus much on the downstream repercussions of the ruling. I’m just curious to see how it all plays out.

      3. You’re not wrong.

      4. Part of me wants gay marriage to be banned just to stick it to the straight progressives.

    2. I made this argument to my lefty friends regularly, but they don’t want polygamy. In fact, when I would ask them “Do you support polygamy?” They would get angry and accuse me of derailing the conversation or trying to lump gays in with polygamists or whatever.

      Quite frankly, as long as all parties are adults and consenting, I don’t give a shit what you do, but in no way, do I see polygamy happening anytime soon.

      1. Exactly. They don’t like polygamists and they like gays. That is all they care about. And if they ever decide for whatever reason liking gays isn’t no longer useful to the ideology, they will turn on gays. They only care about their politics and nothing else.

        1. Yeah, the Left is turning on Jews now. I wouldn’t be surprised to see Leftist turn on gays in my lifetime.

      2. trying to lump gays in with polygamists

        That’s only a problem if you are bigoted against people who make alternative lifestyle choices.

        Why are you friends such bigots?

        1. Who would want the pain multiplier of polygamy? If you do, I say, “go for it!”. That being said, I’d love to see the complex divorce proceedings of a man with two wives who divorces one. Talk about ‘chick fight”!

          1. Actually, I want polyandry, because it is a pain divider.

    3. In the present state of divorce laws, any male who gets himself into a polygamous marriage is an idiot.

  2. For fuck sake.

    Iowa has gay marriage because the IOWA Supreme Court said that an IOWA law violated the IOWA constitution.

    Federal judges got nothing to do with it.

    1. I knew there would be one, goddammit. No matter how much we double-checked everything we’d get one wrong. We’re in the process of fixing.

      1. ok. I forgive you this time. 😉

        1. kinnath = boring pedant

          the point is that TOP.MEN. are running the serfs lives and have better judgment and must overturn their wishes.

    2. I fixed it. Thanks for bringing it to our attention.

      1. Thanks for the change.

        As long as I am being an asshole:

        Recognition was approved by state legislature, popular vote, or judicial ruling based on state constitution, not due to a federal judicial ruling.

  3. So all but a few states, when given the opportunity have rejected this.

    That of course means nothing. The fact that it would effect this many states should have no bearing on the ruling. Either the 14th Amendment requires state recognition of gay marriage or it doesn’t. How many states get to refuse government recognition of gay marriage has no relevance to that issue.

    1. Wouldn’t the Full Faith and Credit Clause require marriages in one state to be honored by another state?

      1. I think that part of the federal DOMA act was not struck down.

      2. Not if it is not a due process right. States only have to recognize other states laws consistent with due process. So for example, cousin marriages are legal in some states. But other states are not required to recognize them.

    2. No bearing on the immediate ruling.

      I’m sure there will be a case in the future because a newly enacted law would *force* pregnant women homosexuals to have to drive 600 miles just to have an abortion get married.

      1. Ha, ha, m.c. As the socons here constantly remind me, the homos can get married any time, any place they want. This is about state recognition of those marriages.

        1. I’d love it if the Court said, “Yo, what the fuck is the government doing in the marriage business? Licensing of marriage is now illegal.”

          Naturally, they’ll do no such thing.

          1. ^^THIS…don’t we have better things to do?

        2. This is about state recognition of those marriages.

          Every state in the Union recognizes a woman’s right to an abortion, right?

          What do your Socon friends say when you ask them, “Even in your church?”

          1. be honest.

            this is definitely not about state recognition. state recognition is ancillary. its the current tool of the month because folks won’t voluntarily socially accept homosexuality.

            violenceostracismpreference

            if ppl preferred homosexuality they would be gay themselves. if ppl bowed to ostracism and shaming to accept homosexuality then the black robes wouldn’t need to overturn the serfs initiative process. violence is the final measure to effect social change. This is about using the power of the state to change a cultural term “marriage” to include a group that the marketplace of ideas has said is not included. SSM advocates reject equal but differently named ‘civil unions’.

            Its about using force to control society’s appropriation of a cultural implement (the word ‘marriage’). violence is not an appropriate method to guide non-violent culture.

            SSM is an immoral movement (violates NAP) that is dishonest about its ends (rights not word redefinition), and actively obfuscates its intended means (disconnecting writing a paper regulation from how cops treat non-compliance).

            1. violence trumps ostracism trumps preference.

              or “is greater than”.

            2. It’s not violence to change the definition of a word, you delicate little petunia. Do libertarians just call anything they don’t like “violence”? Because it’s seeming awfully metaphorical these days.

              The fight is to change the legal definition, period. You can take a pair of scissors to your dictionary and nobody will give a fuck. Words don’t have civil rights.

    3. So all but a few states, when given the opportunity have rejected this.

      When its put to a vote, people tend to vote for the definition of marriage as “man and woman”.

      Which, naturally, means that according to the courts, marriage now means “any tow people”.

      To repeat my constant question on this:

      Who gets to say what words really mean? How am I supposed to know when a word’s meaning has changed so that something that was legal on Monday is illegal on Tuesday?

      1. Consult a Dictionary.

  4. My guess is that the Supremes will either strike down all the gay-marriage laws in the country, or subject those laws to strict standards which the lower courts will inevitably apply in order to strike the laws down.

    1. Nobody believes that SCOTUS is going to rule that gay marriage isn’t an Equal Protection right. Nobody.

      This is done.

      My only concern is with the precedent we are setting here.

      Although, if they apply their ruling that gay marriage licenses have to be recognized in every state, I’m hoping they do so with language that means concealed carry licenses also have to be recognized in every state.

      1. That would be fucking delicious.

        You know what would be even better? If it meant that the states had to recognize all kinds of licenses from other states. Lawyers, Doctors, Architects, Hair Braiders, whatever.

        1. Just because you have right to have your license to marry the person of your choice recognized by every state,

          Doesn’t mean you have the right to have your license to practice the profession of your choice recognized by every state.

          Because reasons, dammit!

        2. Nice idea! But what to do with all the money I currently pay every year for the ‘privilege’ of practicing in 5 states? And how will they survive without those fundz?

  5. my classmate’s sister makes $76 every hour on the laptop . She has been out of a job for 10 months but last month her check was $13884 just working on the laptop for a few hours. go to the website………

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  6. If the SCOTUS doesn’t approve gay marriage, how will Scalia and Ginsburg get gay-married?

  7. Want gay marriage? (Doesn’t matter if you do!)

    Get it popular enough that it doesn’t need the Court to impose it.

    It’s almost there, and it’s not gonna be stopped; it’s a generational change.

    Pushing to get it a few years earlier before it has local popular approval leads to backlash and slows it down.

    1. Nah, the SSM crowd just figures that after the Supremes have mandated state-recognition of their relationships, the rest of us will just lie back and enjoy it.

  8. Updated for … um … reasons and also to account for this afternoon’s ruling on Alabama.

  9. So in Common law states would Oscar and Felix be married?

    1. No. There are only 9 or 10 states that still permit common law marriage and one of the requirements is that the couple “hold themselves out as husband and wife.” So one would have to change his last name, tell all his friends his married, all the things married people would normally do.

  10. Let’s see, in over 99% of known human history and civilization there has not been homosexual marriage. The civilizations that did have it aren’t anything we’d want to emulate. Now, the supposedly enlightened robed class from state to state just slap themselves on the forehead and say, “Shize, it’s been in the 14th Amendment all along!” Give me a fucking break….

    If the proponents of homosexual nuptials want to admit that we’re breaking new ground here and start from the bottom, I’m on board. Maybe coin a new word that is not “marriage.” Otherwise, yes, the slippery slope is getting greased.

    1. Give me a fucking break….

      Give ME a fucking break. READ the 14th amendment (I’ve cited it below)

      Let’s see, in over 99% of known human history and civilization there has not been homosexual marriage

      Let’s see, if anyone had said that at our founding, half the Constitution would have been thrown out. And we’d have never emancipated 3000 years of slavery!!! Or allowed women to vote.

      And for thousands of years it was not a religious rite, and no public records, so your assertion is unknowable.

      Otherwise, yes, the slippery slope is getting greased.

      You’re on a slippery slope to fascism and rejecting our entire form of government.

      I don’t know if religion is involved in your argument, but marriage was not even a sacrament until the 15th century. By your “standard” it should have NEVER become a religious ritual … a slippery slope toward theocracy.

      PRIVATE marriages preceded the religious rite by thousand of years, no more than mutual agreement with witnesses (or given by the father). And the intrusion has been by religion. IF you’re making a religious argument.

      Don’t forget to learn the 14th Amendment. And the 9th, which ALSO limits state government powers explicitly.

      1. [quote]Let’s see, if anyone had said that at our founding, half the Constitution would have been thrown out. And we’d have never emancipated 3000 years of slavery!!! Or allowed women to vote.[/quote]

        *Ahem* Amendments were passed to emancipate the slaves and establish women’s suffrage.

        (I don’t know how to do the quote tags for reals)

        1. So???????
          That’s BECAUSE it was not said at our founding

    2. Pretty sure the gays weren’t asking to get married back in the 18th century. It’s a relatively new phenomenon.

    3. Barnstormer

      84.6% of cultures allow polygyny. I expect you to urge your elected officials to legalize polygyny this weekend.

      1. My elected officials already practice this.

  11. Needs another correction. This is as crazy about the Constitution as Ron Paul. It doesn’t matter how gay marriage legalized by a state, if the Court rules that the 14th Amendment applies, or the 9th. This is the relevant clause in the 14th.

    No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    If Reason is now following Ron Paul and the KKK that unenumerated powers to the federal government are reserved to the states — then the movement has gone off the rails entirely.

    PLUS the 9th Amendment

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    Unenumerated rights trump unenumerated powers in a government of delegated powers, so the 9th Amendment trumps the 10th. DUH And the Ninth explicitly forbids ALL levels of government from denying or disparaging fundamental human rights (Jefferson’s unalienable rights) That’s why we have a Supreme Court.

    1. I’m not sure what you’re getting at. If the Supreme Court decides that that bans are not violations of the 14th Amendment, then it won’t affect states who have legalized gay marriage recognition via other avenues (the blue states on the map). If the Supreme Court does determine the 14th Amendment trumps gay marriage bans, then those blue states won’t be fundamentally affected because gay marriage is already recognize there.

      The Supreme Court’s grant of cert says that it’s specifically going to address the 14th Amendment questions, so that’s why we did this map in this fashion.

      1. Hi, Scott, my opening paragraph qualified my remarks “if the Court rules that the 14th Amendment applies, or the 9th.”

        I only recently noticed that we somehow lost the 9th amendment which was THE libertarian amendment for decades, because, in effect, it incorporates the Declaration’s “unalienable rights”, natural law, whatever. The 9th is now virtually ignored by both the Court. And by libertarians, I assume by the influence of Ron Paul’s version of States Rights.

        I’m too busy to check right now, but the 9th was cited in one of the two abortion rulings, Roe v Wade or Casey. I’m not that studious, but I’ve not seen it used since.

        1. Oh, I’ve long felt that gay marriage recognition should be supported under the 9th amendment. I don’t see any indications that the Supreme Court will be considering it in these cases, though. This map isn’t meant to express and attitude by me or Jason about how things should play out. Just how SCOTUS is approaching the decision and the likely impacts.

        2. Probably because incorporating the 9th at the federal level makes no sense whatsoever. It cracks up in a circular paradox. If the people retain a right, then the federal government doesn’t have to force them to retain that right. If they don’t retain a right, then the 9th amendment doesn’t apply.

          1. Probably because incorporating the 9th at the federal level makes no sense whatsoever.

            Sounds strangely like Ron Paul’s bullshit. Read it. THEN we’ll address the goofier claim.

            The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.[1]

            Somewhat obviously, it restricts BOTH the state and federal levels.

            Now you go off the rails.

            If the people retain a right, then the federal government doesn’t have to force them to retain that right

            (lol) Where did you get THAT from?

      2. Sorry, this is posted second, after reading the chart again. The last sentence, which I can’t paste, says that “other” states would not be affected by a court ruling “either way.” — because (in bold) they didn’t go through the courts. Hence my objection that it doesn’t matter how did anything.

        a) If 14th applies, those states need do nothing, regardless. They’ve already done it.

        b) If the 14th does not apply, those states also do nothing, because this is not an attempt to forbid states from doing so. (IIRC)

        Am I missing something?

        1. That’s right. I suppose if you want to be really technical, the Supreme Court’s ruling could determine whether or not the blue states could reverse their recognition of gay marriages if they for whatever reason decided to do so.

          1. Sorry, that’s the same error (larger in one sense), falsely stating that HOW a state acts has relevance. On what basis?

            I’m not sure when common sense became really technical. Or the error I caught (in your boldface), has not been corrected … since it was updated an revised for the recent ruling.

  12. May 3 males marry?

    Perhaps a father can marry his son?

    May a mother marry her two daughters?

    If not, why not?

    1. What original and insightful questions.

    2. I got no problem with it. None of my fucking business.

    3. AlgerHiss,

      If I give you my dad’s address, will you send him a letter denouncing him for the affair he had?

  13. Well now that makes a lot of sene dude.

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  14. “The Supreme Court could overrule these judges’ decisions, jeopardizing gains in those States”
    GAINS?
    Editorialize much?
    To a great many, some of whom won’t say so to avoid the non-PC label, such decisions are morally retrograde, as well as constitutionally, but let’s not let that get in the way of good propaganda.

    1. You’ve seen through Reason’s decades of completely open, vocal support for gay marriage.

    2. retiredfire has sadly seems to have got his constitution from Ron Paul’s.

      Both the 9th and 14th Amendments forbid states from denying of disparaging fundamental human rights like, oh, Life Liberty the Pursuit of Happiness and all the other. The 9th forbids it at the federal level.

      If you get your “moral” argument from the Old Testament, when will you start stoning people to death for minor infractions … and killing all the infidels (Deut 13?). You’d never place your own word above the Word of God, right?

  15. I like that same-sex marriage is legal in New Jersey, because the last time I told a man that I’m saving anal for marriage, he spit his beer out.

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