Legal views of same-sex marriage, like public opinion, have evolved

Buried deep in a Kansas federal court case file are the legal arguments against same-sex marriage as they once were.

Writing with the tang of brimstone and wrathful prophecy, lawyers representing Topeka’s Westboro Baptist Church tried, unsuccessfully, to intervene in a same-sex marriage case that now is headed to a federal appeals court in Denver.

“Same-sex marriage will destroy Kansas,” the attorneys wrote. “If this court requires Kansas officials to treat what God has called abominable as something to be respected, revered and blessed with the seal-of-approval of the government, that will cross a final line with God. The harm that will befall this state, when the condign destructive wrath of God pours out on Kansans, is the ultimate harm to the health, welfare and safety of the people.”

But the legal arguments, both for and against same-sex marriage, now are far beyond the biblical. Since early October, a tsunami of judicial paperwork, stressing due process and equal protection, has washed over Missouri and Kansas and swept away once-firm bans on same-sex marriage in both states.

Laws and constitutional amendments that not long ago had the enthusiastic support of voters and elected officials now hang on the unlikely possibility that the U.S. Supreme Court will again affirm a state’s right to define marriage as being only the legal union of a man and woman.

How unlikely?

Justice Antonin Scalia dissented last year from a Supreme Court decision that set off the current flood of litigation when it declared that the federal man/woman-only marriage definition was unconstitutional. He predicted that the court’s five-vote majority soon would turn its attention to similar state laws.

“As far as this court is concerned, no one should be fooled,” Scalia wrote. “It is just a matter of listening and waiting for the other shoe.”

To see where the Supreme Court may be headed, a little history is helpful, noted one same-sex marriage activist.

In 2004, A.J. Bockelman raised money to help try to defeat a proposed amendment to the Missouri constitution defining marriage as the legal union of a man and a woman. He was not successful. The measure passed with about 70 percent of the vote.

Afterward, Bockelman said, the movement depended on the positive community examples of loving same-sex couples. People also became more comfortable acknowledging that they had a gay friend, co-worker, brother, sister, daughter or son.

Slowly, cities in Missouri began adopting nondiscrimination laws, Bockelman said. The same-sex marriage movement took off nationally, however, when the Supreme Court struck down the federal Defense of Marriage Act, passed during the Clinton administration, last year.

Bockelman noted that the issue was no longer about love. Rather, the fight was about the disparity faced by same-sex couples who could not take advantage of the economic benefits of marriage. An unfairness became clear, Bockelman said.

“We talked about the nitty-gritty,” Bockelman said. “It became more about filing taxes, having benefits and inheritance rights. The civil elements of marriage became more important. And when people saw that, it moved public opinion rapidly.”

And as the discussion moved to whether same-sex marriage bans could be defended on the constitutional grounds of “equal protection” and “due process,” opponents of the practice depended on states-rights arguments and appeals to social utility.

Faith-based arguments make little headway in court, said Jim Campbell, senior legal counsel for the Alliance Defending Freedom, which opposes same-sex marriage.

“This is a question of social policy — the state’s interest — and not a question of religion,” Campbell said. “Marriage relationships between men and women do something very unique — they create children. And we have a significant interest as a society to ensure that Mom and Dad take care of the child they created.”

So far, the arguments of Campbell and other opponents have prevailed in only one of the nation’s 12 federal circuit courts of appeal.

Campbell said he is hopeful that the Supreme Court will return the question to the voters.

“The ultimate question is whether people are free to affirm the definition of marriage as between a man and a woman,” Campbell said.

Likely not, said Carl Tobias, a law professor at the University of Richmond. It is the duty of federal judges to invalidate laws that violate the constitutional rights of another person, he said.

The legal arguments are quickly aligning with a profound shift in public opinion on same-sex marriage, he said.

A new study of Missouri and Kansas cities by the Human Rights Campaign — a gay rights group — found that Kansas City and St. Louis topped the list with perfect 100 scores in laws and policies that encourage equality for its lesbian, gay, bisexual and transgender residents.

The study described Kansas City as “shining like a beacon of hope.”

Judges hearing these cases can see that direction and respond.

“You can’t really untangle the political stuff from it,” Tobias said. “It’s public opinion. People are saying, ‘Get with it. It’s not a problem.’ Judges are seeing that.”

This story was originally published November 15, 2014 at 6:06 PM with the headline "Legal views of same-sex marriage, like public opinion, have evolved."