Is There a Continuing Legal Threat?
Advocates of same-sex "marriage" have filed and will continue to file lawsuits in various states seeking recognition of homosexual "marriage" as a constitutional right under state law. A number of major lawsuits are pending in states across the nation. These suits ask state courts to determine that state constitutional provisions require the recognition of same-sex "marriage." The map below tracks these cases. This information is current as of October 12, 2004. The map will be updated periodically. Our friends at the Alliance Defense Fund have created a new website to track such lawsuits. Please click here for the most up-to-date information.
State courts might recognize same-sex "marriages" pursuant to their state constitutions, overriding clear state policy and state DOMAs. Thus, legal recognition of homosexual "marriage" could be spread by way of state courts on a state-by-state basis.
A state or federal court ruling that a state must recognize same-sex "marriages" pursuant to the U.S. Constitution would assuredly lead to an appeal into the federal court system and eventually bring the case before the U.S. Supreme Court. This would very likely entail a challenge to the federal DOMA.
Under normal circumstances, the federal DOMA would survive constitutional scrutiny. Many thoughtful legal scholars, however, believe that it likely would not withstand activist judges using dubious interpretations of due process or equal protection to advance their policy objectives. Given what is at stake, it is risky to rely solely on the federal DOMA.
Constitutional Experts Agree that the State and Federal DOMAs are in Danger of Falling.
"You’d have to be tone deaf not to get the message from Lawrence that anything that invites people to give same-sex couples less than full respect is constitutionally suspect." – Lawrence Tribe, Harvard Law Professor
"We will have to challenge the federal Defense of Marriage Act but we are not in a position to do that until [homosexuals] are [actually] married…." – Lambda Legal
"Now the time is ripe for a constitutional challenge to DOMA. . . . A successful equal protection or due process challenge, however, is likely to have the farthest-reaching implications for the future of same-sex marriage in two respects."– Harvard Law Review June 2004
In any event, the federal DOMA does not protect the nation from state judges like those in Massachusetts who misconstrue their state constitution to establish same-sex "marriage." Nor does it address various local jurisdictions that openly ignore and violate state marriage laws.
Even if individual states can withstand or postpone direct legal challenges, all states will have to address the very practical and myriad legal problems that same-sex "marriage" generates regarding such issues as adoption, child support and custody, state benefits, and inheritance and property rights. These complications and the legal inconsistencies that are likely to result will increase the likelihood that, at some point, the U.S. Supreme Court will choose to, or be forced to, intervene and resolve the issue for the nation.
If the Supreme Court of the United States gets a word on this issue, it will likely be the last. Assuming the justices follow the logical trend of their own precedents and jurisprudence of recent decades, it would be inconsistent for them not to redefine marriage according to their notions of autonomy, equality, and social progress. And if the United States Supreme Court does redefine marriage, the Court will expect, and many will argue, that the American people should accept their mandate as the final resolution of the issue.