Analysis: On Gay Marriage, Will Five Judges Reject Deliberative Democracy?

By Michael Gryboski, Mainline Church Editor Monday, April 27, 2015

March for Marriage, April 25, 2015, Washington, D.C. | (Photo: The Christian Post/Napp Nazworth)

Florida voters passed Amendment 2 in 2008 with 62 percent of the vote. The number of ballots cast in support of the amendment was approximately 4.89 million. A couple of judges issued localized rulings regarding Amendment 2; one district court judge in August 2014 issued a statewide ruling declaring it unconstitutional. Regarding the statewide ruling, both the Eleventh Circuit and the U.S. Supreme Court denied requests to stay the decision pending appeal.

North Carolina voters passed Amendment 1 in May 2012 with 61.04 percent in support. The yes votes totaled about 1.317 million. Last October, a federal judge struck down Amendment 1, concluding that a Fourth Circuit Court of Appeals decision applied to North Carolina. Another judge in North Carolina issued a similar ruling that October regarding two lawsuits brought in that court.

South Carolina passed Amendment 1 in 2006, with 78 percent of voters saying yes to the ballot initiative. The total number of ballots cast in favor was approximately 818,000. In November 2014 a judge ruled Amendment 1 unconstitutional, granting a temporary stay that the U.S. Supreme Court declined to extend.

Virginia voters approved Question 1 in 2006 with 57 percent of voters in favor and 43 percent opposed. The total of yes votes was approximately 1.325 million. In February 2014, a judge ruled the marriage amendment unconstitutional and the ruling was upheld by the Fourth Circuit Court of Appeals. The Fourth Circuit's decision in the Virginia case in late July of 2014 was then applied also to North Carolina and South Carolina. That October, the U.S. Supreme Court declined to hear an appeal in the Virginia case, along with several other states across the nation.

The West

Gay Marriage advocates cheer during a rally moments before hearing the news of the Proposition 8 over-ruling outside the Ninth Circuit Courthouse in San Francisco, California, February 7, 2012. | (Photo: REUTERS/Beck Diefenbach)

Alaska passed Measure 2 in 1998 with 68 percent of the vote in support. The total number of ballots cast in favor totaled to about 152,000. Around 16 years later, in October 2014, a federal judge concluded that a Ninth Circuit Court of Appeals ruling overturning bans in Nevada and Idaho applied to Alaska.

In 2008, 56 percent of Arizona voted in favor of Proposition 102, totaling to approximately 1.25 million yes votes. This was a turnaround from a similar ballot initiative that narrowly failed in 2006. Last October, a district court judge ruled Proposition 102 unconstitutional, with Arizona's attorney general declining to appeal the decision.

In 2008, California approved Proposition 8 with 52 percent voting yes and 48 percent voting no. The total number of yes votes was approximately 7 million. In 2013, on the same day that the Supreme Court struck down a key component of the Defense of Marriage Act, the highest court in the land ruled 5 to 4 to deny the appeal made. In the majority opinion, the Supreme Court reasoned that the plaintiffs bringing the appeal lacked standing and specifically avoided the question of constitutionality of state-level bans.

Idaho voters approved Amendment 2 in 2006 with 63 percent of ballots cast on the issue in favor. The total number was approximately 281,000.

2002 saw Nevada voters pass Question 2 with 67.2 percent in favor and 32.8 percent opposed. The total number of yes votes was approximately 337,000.

In October 2014, the Ninth Circuit struck down the bans in Idaho and Nevada, affirming a lower court decision in Idaho but reversing a lower court decision in Nevada.

In 2004, Oregon voters passed Measure 36 with 57 percent in favor and 43 percent opposed. The total number of yes votes was approximately 1.028 million. About 10 years later in May 2014 a federal judge struck down the amendment and granted no stay, immediately applying the ruling to the state.

The Few Over the Many

Protesters against gay marriage shout slogans in front of the U.S. Supreme Court in Washington, March 26, 2013. Two members of the U.S. Supreme Court, both viewed as potential swing votes on the right of gay couples to marry, raised doubts about California's gay marriage ban on Tuesday as they questioned a lawyer defending the ban. | (Photo: Reuters/Jonathan Ernst)

Since the Windsor decision, well over 23,496,000 votes in 17 states have been declared invalid by the actions of fewer than 30 lower court and appellate judges.

If the U.S. Supreme Court strikes down the remaining 13 state-level gay marriage bans, it will effectively strike down more than 17.1 million additional votes.

Many experts believe that the Supreme Court will declare all state level constitutional bans on gay marriage unconstitutional, likely via a 5 to 4 decision.

If this occurs, in one decision the court will have effectively overruled over 40.5 million votes from 30 ballot initiatives.