Supreme Court urges states to take the lead grappling with same sex marriage, Stanford scholars say

By Clifton B. Parker

People wait to enter the Supreme Court on Oct. 6, 2014, as it began its new term. (Photo: AP Photo/J. Scott Applewhite)

Same sex marriage took another step this week toward becoming the law of the land – at least how it's defined individually in all 50 states – according to Stanford scholars.

Earlier this week, and in a bit of a surprise, the U.S. Supreme Court announced that it will not hear any of the seven same sex marriage cases pending before the court. Jane Schacter, a Stanford law professor and leading expert on sexual orientation law, said the immediate effect is that the high court will allow marriage to go forward in the states involved in the litigation and eventually in every state in these circuits.

"If the Supreme Court declines review from a circuit court ruling, that ruling binds every state in that circuit," noted Schacter, the William Nelson Cromwell Professor of Law.

Schacter said she believes the likely meaning of the Supreme Court's action denying review is that the court won't take up a same sex marriage case until a federal appeals court upholds a state ban on same sex marriage: "That would create a split among the federal appeals courts that the court might feel obliged to resolve."

As she pointed out, in 2013 the court struck down the federal Defense of Marriage Act, and every federal appellate court to hear a case since that decision has ruled in favor of marriage equality.

"We of course don't know what the court would rule if it did take a case," said Schacter, who said there may well be a narrow majority on the court in favor of marriage equality.

As for those who oppose same sex marriage, she said they will likely continue to argue that each state ought to set its own marriage policy and that nothing in the Constitution grants same sex couples a right to marry.

"They will correctly point out that the court's decision not to grant review earlier this week is not the same thing as a decision affirming that laws banning same sex marriage are unconstitutional," said Schacter.

Litigation is underway in several federal circuits that have not yet ruled on marriage equality, she added. If there was a "circuit split," Schacter said, the "Supreme Court might well decide to grant review and give us a conclusive national answer."

'Sense of justice,' economic inequality

Estelle Freedman, a Stanford history professor specializing in women's history and the history of sexuality, offered an explanation for the shift in public opinion toward favoring same sex marriage in recent years.

"For one, it appeals to people's sense of justice," said Freedman, the Edgar E. Robinson Professor in U.S. History. Before last year, federal law barred same sex couples from availing themselves of many tax benefits that flow freely to heterosexual married couples. Social Security survivor benefits are another issue.

"The concept of marriage as a long-term commitment is important to many people, so it's acceptable to extend it to lesbians and gay men," said Freedman. The legal arguments against same sex marriage were focused on how it might corrupt children or destroy the institution of marriage. Multiple courts have already found such argumentation to be unfounded, she added.

"In short, this court is not going to make it a federal case, ruling for the nation," she said.

Within the LGBTQ community, Freedman said, there is debate about the broader effects of the same sex marriage movement. Some critics point out that concentrating on marriage rights is a conformist strategy that may privilege those with the most resources and overlook problems of economic inequality.

Even with the support for same sex marriage, society still has a problem with homophobia and bullying toward queer people, especially the young and underprivileged, she said.

"Homophobic violence is often experienced by those who are economically vulnerable, including gay youth, people of color and trans people," said Freedman.

She said that while she hoped the recent favorable court rulings would help undermine these hostile attitudes, much work remains to be done beyond the courthouses of America.

To give just one example, revised educational curricula for K-12 students that include LGBT history and issues could be helpful in encouraging respect for diversity, Freedman said.

Changing families, research findings

Michael Rosenfeld, an associate professor of sociology at Stanford who studies race, ethnicity and families, said the percentage of Americans supporting same sex marriage has risen by about 1.5 percent per year in recent years.

As a result, he said, public support for same sex marriage has in many states gone from just less than 50 percent to just more than 50 percent, which allowed same sex marriage to win at the ballot box in several states in 2012.

"Most of that change is due not to individuals changing their minds, though some individuals have certainly changed their minds, but rather to the arrival into adulthood of people from more recent birth cohorts, who have grown up in environments in which gay rights are not controversial," he said.

Rosenfeld described the generational gap in attitudes toward gay rights as "enormous."

"Societal change due to more recent birth cohorts replacing older birth cohorts is called 'demographic metabolism,'" said Rosenfeld.

"Once people perceive that support for same sex marriage is a majority position, as it is now in many states, same sex marriage starts to be perceived as inevitable," he said.

Moreover, social science research shows that the public increasingly perceives same sex couples – especially same sex couples raising children – as families, according to Rosenfeld. As scholars published more research in the past 10 years on children raised by same sex couples, the findings revealed that those children have "good outcomes," he noted.

"The social science consensus that children raised by same sex couples are at no disadvantage has been acknowledged by the various scholarly professional organizations and by the courts," Rosenfeld said.

For more Stanford experts on this and other topics, visit Stanford Experts.

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