"The future's not ours to see..."
Doris Day be darned. Join me instead in looking at what is ordained, what has been foretold, what is likely and what is unlikely to happen in the realm of marriage equality in the coming year.
The fight for marriage equality is now being fought on at least three fronts: through attacks on the constitutionality of the Defense of Marriage Act in federal court, likely to reach the Supreme Court this year; through the battle against Proposition 8, also poised to reach the Supreme Court soon, and other legal challenges to exclusive marriage statutes; and the battle to win marriage equality through ballot initiatives and legislation, both in states of the United States and in foreign countries.
The Supremes are on vacation, but motions are still being filed and decisions awaited in lower courts. Right now the Pedersen case, challenging DOMA in District Court in the 2nd Circuit Court of Appeals is awaiting a decision. A decision could be handed down at any time, now that the defense motion to stay the case has been shot down by Judge Bryant. Or we could continue to wait for months more (the case was fully briefed back in October, 2011). No one really knows at this point.
The government of Scotland is poised to make a decision whether to put forth marriage equality legislation, and has said that decision will be made sometime in July. At least according polling, a significant majority of Scots are in favor of same-sex marriage but, as expected, many Scottish Church leaders are vehemently opposing the idea.
Down under, the Australian Parliament is expected to have a vote on and vote down marriage equality sometime in August. Prime Minister Gillard's Labor Party is in favor, but she is not, so each Labor MP will have to make up their own mind on the legislation. Despite the overwhelming majority of Labor party members being in favor of marriage equality, there are still a number of holdouts among Labor MPs.
The opposition MPs of the Liberal Party (which is the conservative party) have been told by their leader, Tony Abbott, to vote in opposition to the proposal. This will doom the legislation unless a significant number of these Liberal MPs are willing to defy their leader. Pressure continues to build on Mr. Abbott to "release" his MPs for a "conscience vote" but as yet to no avail.
The country itself is more than ready for marriage equality, with polls showing 60% or more of the population supporting it. But unless there is some kind of miracle (perhaps similar to what occurred in New Hampshire this March when the New Hampshire House -- totally unexpectedly -- voted against repealing same-sex marriage despite its membership being overwhelmingly Republican) prospects do not look good.
Oral arguments in Golinski, another DOMA case, are scheduled for September 10th in the Ninth Circuit Court of Appeals; the hearing will be held in San Francisco. In a very interesting development, the Federal government has asked the Supreme Court to hear the case, bypassing the Ninth Circuit proceedings. But the Supreme Court won't make a decision whether to do that until after September 10th, so the hearing is still scheduled to take place. However, if SCOTUS does decide to hear the case, the September 10th hearing before a three member panel of the Ninth Circuit will have been for nought.
The Supreme Court will come back from vacation, and its first order of business will be to decide which cases to hear. On their decision plate will be Gill, the first DOMA case to be decided at the appellate level (at the 1st Circuit), and Perry, the Proposition 8 case from the Ninth Circuit. The 1st Circuit held that DOMA is unconstitutional, and the Ninth Circuit held that Proposition 8 is unconstitutional.
The Supreme Court could reasonably decide not to hear the Proposition 8 case, in which case Proposition 8 would be dead and same-sex marriages would resume in California, a huge victory for same-sex marriage in the lead-up to the election.
Many people are of the opinion that SCOTUS pretty much has to hear the DOMA case(s), because to leave the 1st Circuit Court's decision standing would mean that 1138 Federal provisions having to do with marriage would apply to same-sex couples in the 1st Circuit, but not in the rest of the country -- an administrative nightmare and a practical impossibility.
(In truth, the Court first reconvenes September 24th, but we probably won't know anything about what they're up to until early October.)
November 6th will be a day that may well live in infamy for either marriage equality advocates or their foes. Three referenda on whether to make same-sex marriage legal will be taking place -- in Maine, Maryland, and Washington State -- along with a popular vote on a constitutional amendment in Minnesota which would define marriage as "between one man and one woman."
Marriage equality foes have long and loudly proclaimed the fact that voters have never voted for marriage equality, nor denied their approval of a state consitutitional amendment defining marriage as between "one man and one woman". (Yeah, yeah, I know about Arizona) In fact, that is about the only argument they have left that has even a shred of consistency or even strained logic to it, but that shred will be sorely put to the test in November. Current polling shows all three marriage equality propositions ahead with majority support, while Minnesota's hate-amendment has a plurality against it. Still, marriage equality advocates are quick to point out (and not without reason) that polling aggregates have been wrong before in these matters.
The effect of a clean sweep -- either way -- would likely be devastating to the losing side and generate euphoria amongst the winners. A loss anywhere for the anti-same-sex marriage crowd would put to rest their "never before" argument, much to their chagrin, but in suffering only a single defeat would likely not dampen their spirits much. A solitary win for marriage equality advocates, correspondingly, would not, at this point, make them jump for joy.
A realistic expectation at this point seems to me to be three out of the four coming down for equality, although two out of four or a clean sweep are certainly well within the plausibility range.
Bringing marriage equality to more states in November might be expected to have an effect on the Supreme Court's DOMA deliberations. One might think that the more states that embrace marriage equality, the harder it is to argue that the federal government should be a stranger to it -- even if that logic does not pass strict constitutional muster.
Then there is the small matter of the Presidential election. Should Mitt Romney win, the Attorney General and other positions within the Department of Justice would change hands (and parties). The Department of Justice would, I am told, have the option to redo all the briefs that have been submitted to the Supreme Court by the previous administration whose cases have not proceeded beyond oral argument, including any briefs hypothetically (at this point) submitted for DOMA cases.
The current position of the DoJ is that DOMA is unconstitutional and the likely position of a Romney DoJ would be that DOMA is constitutional. Changing the DoJ's position could therefore not only delay a SCOTUS decision on DOMA, but change it. It is said the Court actually pays attention to the Adminitration's positions, and if the Administration's position changes... Not pretty.
There's nothing scheduled for December that I'm aware of. Which means its a good spot to discuss Illinois. Marriage equality advocates have brought suit in state court, claiming that the existing law in Illinois which allows marriage only between a man and a woman is unconstitutional.
We don't know when the case will be heard at the trial court level, but insofar as the case is just starting and briefs have yet to be filed, December doesn't seem like an unrealistic date if there are to be courtroom proceedings.
There is also a Federal marriage equality lawsuit in Nevada, which has had a number of briefs submitted already. Again, nothing that I'm aware of on whether or when court proceedings would take place, or when a decision might be handed down at the District Court level.
We can also discuss New Zealand. There are two bills that have been proposed in New Zealand calling for marriage equality. They are neither supported nor objected to by the ruling party. The ruling party will not bring either of them up for a vote, claiming it has morei mportant issues to deal with. However, the New Zealand Parliament has a system whereby member-proposed bills are put "in the ballot" and selected at random for consideration, a few bills chosen once every two weeks they are in session. So a bill to legalize same-sex marriage in New Zealand could come up for a vote with almost no warning at any time, if I understand the procedure correctly. Why not in December? As with Australia, polling in New Zealand suggests that a solid majority support same-sex marriage.
What might we expect in the new year?
In France, the President and his Prime Minister have announced that marriage equality will become the law of the land sometime in the first half of 2013. Let's hope they keep to their word.
The Speaker of the Rhode Island House has said that he will bring a marriage equality bill to the floor of the House in 2013. The Rhode Island legislature holds session the first part of the year (the 2012 session ended June 13th), so that would mean earlier rather than later in 2013 for a vote. However, the leader of the Rhode Island Senate, despite being a Democrat, has been adamant in her opposition and may well refuse to let the bill come to a vote in that House.
Assuming no long delays due to a change in administration, the Supreme Court would likely issue a DOMA, Section 3 decision sometime in 2013, probably in May or June.
The Illinois legislature may take up marriage equality legislation, and some small chance that Hawaii might as well.
There is also a chance that the Delaware legislature could take up similar legislation, especially, in my view, if neighboring Maryland votes for equality. That would provide momentum and perhaps induce Delaware's Governor to take a lead role in the push, much as Maryland's Governor did at the beginning of this year.
"Que sera, sera..."
But what will be can be what we make it to be.