High Court Rulings and the Future of Gay Marriage

High courts in several states have issued key decisions concerning gay marriage over the past two weeks. Slate legal analyst Dahlia Lithwick talks with Alex Chadwick about what the rulings mean for the future of gay marriage.

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From NPR News it's DAY TO DAY. A legendary castle in Afghanistan is serving as an army base for U.S. soldiers. That story is coming up on the program in a few minutes. I'm Noah Adams.

ALEX CHADWICK, host:

I'm Alex Chadwick. First, the House of Representatives votes today on a Constitutional Amendment banning same sex marriage. This vote won't matter really except for politics, because the Senate has already rejected the amendment, which effectively kills it. If gay marriage opponents are losing in Congress, though, they are winning in many state courts. Joining us - as she does must weeks - is Dahlia Lithwick. She's legal analyst for the online magazine Slate and for DAY to DAY. She's with us from Charlottesville, Virginia. Dahlia, welcome back.

Ms. DAHLIA LITHWICK (Legal Analyst, Slate.com): Thank you.

CHADWICK: When President Bush talks about this issue, you know, Dahlia, he speaks about activist judges trying to redefine marriage. But I think he means Massachusetts judges, because elsewhere, judicial rulings seem to be going against same sex marriage advocates. How about these decisions on Friday in Nebraska and Tennessee?

Ms. LITHWICK: That's right. This has certainly been a hoping month for gay marriage, Alex. In Tennessee, we had the Supreme Court last Friday unanimously agreeing that they were going to allow voters to decide in November whether to amend their state constitution to ban gay marriage. There had been a suit brought by the American Civil Liberties Union. The court said no, they're not even entitled to bring this suit. They don't have what we call in the law standing to even bring this challenge.

So, that will be on the ballot for the Tennessee voters. And then in Nebraska, we have the 8th Circuit Court of Appeals - also on Friday - overturning a lower courts ruling that had said that the Nebraska ban on gay marriage was unconstitutional. In effect, what that did is reinstate the Nebraska ban on gay marriage.

CHADWICK: Courts in New York and Georgia also have gone against gay marriage advocates. What's happened in those states?

Ms. LITHWICK: That's right, and that was the week before, Alex. The New York case was a really much bigger one, because they square on face this question of whether the state's ban - the New York ban on gay marriage - violated the state constitution. They said it did not, and in fact, the majority said look, it's entirely reasonable - or at least not irrational - to believe that it's really better for children to have heterosexual parents.

The Georgia decision was a narrower decision. They reinstated a constitutional amendment banning gay marriage in that state, so that was similarly okay.

CHADWICK: Massachusetts has allowed a referendum to go before voters. And what is the significance there?

Ms. LITHWICK: Well, essentially, the Massachusetts Supreme Court - which as you know now, Massachusetts is the only state to have legalized marriage, and that was supposed to be this sort of tipping point that was going slippery slope all of us into gay marriage across the country. The Supreme Court said, look, in effect, where going to let this go back to the voters. They're going to decide in 2008 whether or not they think this is a good thing.

CHADWICK: Okay, another case working its way through the court system in California. What is that case, and what does it hold for gay rights advocates?

Ms. LITHWICK: This is a case that was heard last week in California, Alex. Not by the highest court of the state, an intermediate court of appeals that was hearing argument in a whole bunch of cases that had to do with this question of whether a lower court had erred in declaring that the state marriage laws are unconstitutional because they preclude homosexuals from being married.

One of the judges was sort of saying, look, all of these arguments you're saying that would preclude gay marriage seem to be the same arguments that used to be used against interracial marriage. So a much more sympathetic hearing in California. That one still has to work its way up to the highest court in the state, so let's see how that shakes out in the coming years.

CHADWICK: So when you review all this, think about all this, do you think there is some kind of general idea or trend that you can come to on the state of gay marriage and the courts? Or is this just kind of a bunch of random opinions based on differing sorts of conclusions and ideas?

Ms. LITHWICK: Well, I think at first blush you can say look, this has been just massive national blow back for what happened in Massachusetts. That rhetoric that you opened with, the rhetoric of activist judges really stuck, and it really struck a cord with a lot of Americans. It felt like the court in Massachusetts had overreached when it said gay marriage is in fact a constitutional right.

I think what we're going see shake out is a sort of a patchwork. That is to say Massachusetts may or may not have gay marriage in a couple of years. California may or may not. We're still waiting on decisions from New Jersey and Washington State. An awful lot of states, you know, have either banned by amendment or by statue. More states are looking to do that in November.

But I think we're going to see sort of state by state this become an issue of state concern and maybe not federal concern.

CHADWICK: Opinion and analysis from Dahlia Lithwick. She covers the courts for the online magazine Slate and for DAY TO DAY. Dahlia, thank you again.

Ms. LITHWICK: Always a pleasure.

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