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May You Live in Interesting Times: Gay Marriage and Legal Change

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By Casey C. Sullivan, Esq. on June 26, 2015 11:58 AM

May you live in interesting times, the old Chinese curse goes. Interesting times these are, with rapid judicial and societal shifts, particularly around gay rights and same-sex marriage -- and only Scalia would view that as a curse.

This morning's Supreme Court declaration that the fundamental right to marriage extends to same-sex couples highlights just how much things have changed in such little time.

The Bad Old Days

For lawyers and young'uns, it can be easy to take support for gay rights and same-sex marriage for granted. After all, millennials overwhelmingly support LBTG rights, from workplace protections to same-sex marriage. The legal profession hopped on the bandwagon years ago, so much so that it was difficult to find any prominent firms to defend same-sex marriage bans.

Not even a decade ago, however, the landscape was very different. In 1983, the Supreme Court upheld state laws which criminalized sexually active same-sex relationships in Bowers v. Hardwick, a precedent which stood for almost 20 years.

Back when Kurt Cobain was still alive and many millennials were not, the first state court found a constitutional right to same-sex marriage. In 1993, the Supreme Court of Hawaii ruled in Baehr v. Lewin that refusing to allow same-sex couples to marry violated their right to privacy and was unconstitutional gender discrimination.

Despite this ruling, there were no gay marriages in Hawaii. Public backlash resulted in the changing of Hawaii's constitution and the first imposition of the Defense of Marriage Acts, which limited marriage rights to opposite-sex couples.

That backlash continued throughout the 90's and aughts, with state DOMA referendums often proposed during general elections in a get out the vote measure to bring conservatives to polls. Ken Mehlman, former Chairman of the Republican National Committee, made fear of gay marriage a central tenant of GOP election efforts under George W. Bush. In a cruel twist, Mehlman later came out in 2010.

A Sea Change on Gay Rights

Popular opinion on gay rights has evolved due to a mix of media exposure, political activism, strategic litigation and increasingly open LGBT public figures. In the legal sphere, the Supreme Court has been at the forefront of much of that change. When the Court overturned Bowers in 2003, just 12 years ago, state and federal courts began to treat arguments about the equal rights and due process of gay and lesbians more seriously.

The largest changes, of course, came after the 2013 ruling striking down the heart of the federal Defense of Marriage Act in United States v. Windsor. Following that ruling, all the supports propping up anti-gay marriage laws began to fall. Indeed, in the following two years, several circuit courts ruled that state same-sex marriage bans violated the Constitution. Same-sex marriage went from a rarity to widespread, being allowed in 36 different states. Only the Sixth was the outlier -- and they were overthrown today.

To be sure, many issues remain to be settled, including issues regarding same-sex parental rights, employment discrimination, and religious objectors. But there's no denying the vast change that has taken place in the past decade, nor will there be any going back.

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