Could we lose on marriage equality by winning?
From my admittedly layman's point of view it looks like the Prop 8 case will have three possible outcomes. One is a flat out loss where the SCOTUS says that states can ban marriage equality with impunity. Results the states that allow marriage now will continue to do so. California, if polls are to be believed, will overturn prop 8 in 2014. States will slowly permit first civil unions and eventually marriage and in maybe 15 years we will try again if the SCOTUS looks more favorable.
Option 2We could get a full win. States can't ban marriage equality at all. Results obvious, all 50 states get marriage equality.
Option 3, SCOTUS rules that states can't ban marriage equality if the state grants the rights of marriage but not the word, marriage. Results Rhode Island, Hawaii, Oregon, New Mexico, Nevada, and Illinois (and possibly Colorado) get added to the marriage equality roll call. But, we are then frozen in amber. No state will grant civil unions until they are ready for marriage equality since civil unions will require marriage. This is what the appeals court ruled. Option 2 is what the district judge ruled.
Option 3 could freeze marriage equality until it is decided to litigate again in say 15 years. It would give us the states where we are likely to win quickly anyway but then make it harder to win any of the remaining states. I honestly don't know which better between option 1 and option 3 for those who live in states where civil unions are possible but haven't been enacted yet. Under option 1, they could get civil unions without getting marriage equality thus quickening the process of gaining some rights but not all. The unknown, is just how long the wait would be. Without that knowledge we have no way of knowing which of option 1 or option 3 would be better in the middle term.
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Last edited Sat Mar 9, 2013, 02:32 AM - Edit history (1)
I'm no lawyer, but it seems to me that it will take a federal case of discrimination in 1 state to overturn anti-marriage equality laws in all that remain of the 50, but it's coming, and maybe sooner than 15 years.
One example might be that Lieutenant X is married and stationed in MD, but then her duties move her and her same-sex spouse to Alabama, where she'd be married legally on the federal land of the base but not anywhere else in the state, which means no state benefits, and possibly even denial of access to federal benefits.
