Supreme Court and Gay Marriage: How Hollywood Paved Way for Upcoming Ruling (Analysis)

Friday’s announcement that the U.S. Supreme Court finally will decide whether marriage equality is a constitutional right sets the stage for the last act in a drama Hollywood began to script shortly after the passage of Proposition 8 nearly seven years ago.

The entertainment industry’s pro-gay rights activists, like most Democrats, had been preoccupied with electing Barack Obama that year, and essentially were taken by surprise when the ballot measure overturning the state high court’s landmark ruling legalizing same-sex unions passed. Shortly afterward, a small cadre of Hollywood Dems concerned with the issue—including Rob and Michele Reiner, Norman Lear and then-political consultant Chad Griffin, now head of the Human Rights Campaign—resolved on a high-stakes legal strategy: They would challenge Prop 8 in federal court, asserting that gays and lesbians are entitled to wed under the U.S. Constitution’s Equal Protection clause.

“The Supreme Court has taken an important step to resolve one of the greatest civil rights issue of our time: whether all couples across the nation will be able to exercise the fundamental right to marry the person they love,” the Reiners said in a statement Friday. “We are obviously thrilled with this decision and are hopeful that the Supreme Court will affirm that denying same sex couples the right to marry is unconstitutional.”

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The couple, founding board members of the Foundation for Equal Rights, which sponsored the Prop. 8 challenge, went on to say that they are “are proud of the work that we did in California through the successful challenge of Proposition 8, which reinstated the freedom to marry for gay and lesbian couples in California and made it clear that denial of those rights is unconstitutional. We are hopeful and optimistic that California’s example will pave the way for a nationwide recognition of equal dignity and respect under the law for all Americans.”

Still, following the Prop. 8 ruling many marriage equality advocates bridled at what they considered a risky strategy, favoring a more slowly paced, state-by-state strategy, as they’d pursued since 2008, when Massachusetts’ state supreme court became the nation’s first to explicitly recognize the right to marriage equality. Even after a San Francisco federal judge struck down Prop. 8 on precisely the grounds the Hollywood activists hoped, their strategy seemed to many like a gamble, since its ultimate aim was to force the generally conservative U.S. Supreme Court to decide whether the equal protection clause protected a right to marriage equality.

What the entertainment industry activists had sensed—and what they were, in fact, counting on—was that a tectonic demographic and cultural shift was underway across America, tilting the country ever more decisively in favor of gay rights generally and marriage equality in particular. Moreover, since writing the majority opinion striking down the Texas sodomy law, one member of the court’s conservative majority, California-born Justice Anthony Kennedy, had shown himself willing to side with the liberals when it came to gay rights.

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Since it rejected efforts to overturn the federal judge’s ruling in the Prop. 8 case and challenges to federal Defense of Marriage Act, the Supreme Court has seemed content to step aside and to let the lower appellate courts apply the logic of their recent rulings to marriage equality, overturning one state ban on gay unions after another. As a consequence 36 states now acknowledge marriage equality.

One federal circuit, however, has proved an outlier, the Cincinnati-based 6th which has jurisdiction over a large section of the upper Midwest. Justice Ruth Bader Ginsberg—a reliable vote for marriage equality—recently warned in a speech that, if the 6th Circuit broke with the other appellate courts and upheld prohibitions on same-sex unions, there would be “some urgency” for the Supreme Court to step in and rule on whether the U.S. Constitution protects marriage equality across the country.

Recently, the 6th Circuit justices did exactly that, upholding gay marriage bans in Michigan, Ohio, Kentucky and Tennessee, placing itself at odds with rulings by the 10th Circuit, 7th Circuit, 4th Circuit and 9th Circuit, all of which struck down states’ gay marriage bans.

To the delight of Hollywood’s gay rights supporters, the high court now has said it will resolve the contradiction, ruling on whether the federal Equal Protection clause guarantees a right to marriage equality and whether states without same-sex marriage statutes, must nonetheless recognized the legality of such unions performed in other states.

“Hooray and it’s about time,” said Joel Flatow, the Recording Industry Association of America’s West Coast director. “It just shows the country has reached a cultural and a legal tipping point on the issue. It makes no practical sense and no moral sense that a gay couple can get married in one state but be denied a marriage in another state. The Supreme Court should act.”

The court announced Friday that it will hear two and one-half hours of argument on marriage equality sometime in the spring and will rule on the issue by late June.