Judges Are Ready for Gay Marriage—Are the People?

As more courts start legalizing same-sex marriage in Southern and Midwestern states, will cultural mores catch up with the law?
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Texas residents Susan Farr and Shelly Butler kiss after their wedding ceremony in Pulaski County, Arkansas, where they were among the first couples to file for a marriage license in the state. (Associated Press)

This has been a big, historic week for gay marriage in America. On Saturday, Arkansas issued its first same-sex marriage licenses following a ruling that overturned the state's ban. On Tuesday, an Idaho judge struck down the state's constitutional prohibition against gay unions; the first wedding ceremonies will take place today. And on Wednesday, a federal appeals court heard oral arguments in Bostic v. Schaefer, the highly anticipated challenge to the same-sex-marriage prohibition in Virginia.

The important theme here is that the rapid expansion of gay marriage is being led almost exclusively by judges. Although there were three upheld court rulings in favor of gay unions before summer of 2013, most of the states that allowed gay marriage before the Supreme Court's decision in United States v. Windsor got there with legislation or ballot initiatives. Since Windsor, which struck down the federal ban on gay marriage under the Defense of Marriage Act, there have been nine rulings expanding the definition of marriage. Almost every state where same-sex unions remain illegal now faces a court challenge.

It's not a coincidence that the most liberal, pro-gay areas of the country were the first to embrace legal same-sex unions at the ballot box or the statehouse. New York Governor Andrew Cuomo and state senators in Vermont could afford to cheerlead for marriage equality; their constituents agreed with them. In these areas of the country, people's beliefs eased the way for social change.

But it's unclear how popular beliefs will evolve in the places where the future of same-sex marriage is now being decided. In 2004, 75 percent of Arkansans voted for a constitutional amendment that stated that "marriage consists only of the union of one man and one woman." A decade later, clerks in counties across the state are issuing marriage licenses to gay women and men.


Legislative Action for and Against Same-Sex Marriage

Note that legislative efforts in a couple of states were mixed. In Arizona, for example, voters rejected an anti-gay marriage ballot in 2006 and then accepted it in 2008. The New Jersey legislature would have passed legislation enabling same-sex unions in 2012, but Governor Chris Christie vetoed the bill. (Data: Freedom to Marry, Pew Research Center)

In the coming months, similar rulings may make same-sex marriage legal in many of other states that passed constitutional bans with strong majorities. More than three-quarters of Oklahomans voted for an amendment to outlaw gay unions in 2004; a ruling against that law is awaiting appeal. The same is true of Texas, where 76 percent of its residents voted for a similar amendment in 2005. Next month, oral arguments will be heard in a challenge to Louisiana's ban, which nearly 80 percent of residents voted for in 2004; many other case developments are expected in throughout the summer and early fall.


U.S. Court Cases on Same-Sex Marriage 

Note that the pending court cases in Kentucky, Ohio, and Tennessee all concern the recognition of out-of-state same-sex marriages, not the legality of same-sex marriage itself. Although no cases are currently pending in South Dakota, one may soon be filed. (Data: Freedom to Marry, Pew Research Center)

Pew Research Center

A lot has changed in the last decade—and not just in terms of legal status. In Pew surveys of nationwide attitudes toward same-sex marriage in 2012 and 2013, researchers found that many people had changed their minds over the course of 10 years. The graphic at right, for example, shows just how much perspectives have shifted: Last year, 60 percent of people said "homosexuality should be accepted by society," up from 47 percent in 2003. And the percentage of people who said they have a "favorable opinion" of gays and lesbians was up by 16 and 19 percentage points, respectively.

But even though Americans have clearly become more comfortable with homosexuality, the 2013 poll numbers indicate significant ambivalence. A majority of people still say that same-sex marriage goes against their religious beliefs. Forty-five percent of people believe it is a sin to participate in "homosexual behavior." Forty percent would be upset if their child were gay or lesbian, and perhaps most tellingly, only slightly more than half of people say they have a favorable opinion of gay men.

Pew Research Center

These views vary a lot by region. This geographic breakdown of attitudes toward the LGBT community from 2012 is slightly dated, but it gives a good sense of the places where people are most uncomfortable with homosexuality.

The states with the strongest opposition to gay marriage? Alabama, Arkansas, Kentucky, Louisiana, Mississippi, Oklahoma, Tennessee, and Texas. The states where gay marriage bans have recently been struck down, out-of-state unions have been ordered to be recognized, or rulings are pending appeal? Among them: Arkansas, Kentucky, Oklahoma, Tennessee and Texas. Cases in Alabama and Louisiana are scheduled for hearings and arguments imminently.

This means the legal battle over same-sex marriage is about to take on a new feel. It's moving south, to the places in America where people feel the strongest moral opposition to homosexuality. As Arkansas has shown, the citizens of these states don't need to approve of gay marriage for it to become legal. Judges all over the country are ruling that bans against these unions are unconstitutional; from this standpoint, the moral sentiments of Arkansans and Texans and Oklahomans are irrelevant.

But it's unclear what the cultural reverberations will be. Perhaps the trend toward acceptance of the gay community will continue; as same-sex marriage becomes legal in more and more states, it will probably start to seem less novel and more mundane, just like every other marriage. This might help people feel more comfortable with homosexuality in general.

There will always be people in America who object to gay marriage, not to mention gay sex, or even "gay culture," which is part of what shapes those "favorable" and "unfavorable" opinions cited in the Pew study. For some, these are a deeply seated religious beliefs, and those are unlikely to change, regardless of what happens with same-sex marriage. But cultural changes started the chain reaction of legalization, and in turn, that chain reaction has helped shape culture. Individual judges will define gay marriage in the heartland, Dixieland, the Great Lakes states. But in time, gay marriage itself may come to change how American think.

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Emma Green is the assistant managing editor of TheAtlantic.com, where she also oversees the National Channel and writes about religion and culture.

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