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Legal analysts declare: 'It's Over: Gay Marriage Can't Lose in the Courts.'

People protest against equal marriage outside the Walter E. Hoffman U.S. Courthouse on February 4, 2014 in Norfolk, Virginia
People protest against equal marriage outside the Walter E. Hoffman U.S. Courthouse on February 4, 2014 in Norfolk, Virginia
Getty/AFP/File, Jay Paul

Over the past month, federal courts have struck down same-sex marriage bans and restrictions in Utah, Oklahoma, Kentucky and Virginia, and it seems this past week's decision in Virginia was the final blow for legal analysts Dahlia Lithwick and David Choen at Slate.com.

"It's Over: Gay Marriage Can't Lose in the Courts," their headline declares.

When the Supreme Court overturned the Defense of Marriage Act, legal handicappers and observers wondered whether the decision effectively struck down gay marriage bans, too. It was presumed likely because the court also kicked California's same-sex marriage ban, Proposition 8, back to the lower appellate court, the 9th Circuit U.S. Circuit Court of Appeals, which had already declared the ban unconstitutional.

In the DOMA decision, Justice Anthony Kennedy, who wrote the majority opinion, addressed two arguments, one federalist – that DOMA overrode states' rights to define marriage – and one based on equality, arguing that discriminating against same-sex couples was unconstitutional.

At first, no one was sure whether the latter argument could be used alone against discriminatory state laws. Now we know.

Starting with the 2012 November election, gay marriage has become legal in 12 states. Since the Supreme Court rulings last June, there have been 18 lower court cases addressing gay rights, and equality has won them all unanimously; not one of the 32 judges who heard those cases has dissented, Lithwick and Cohen note. State attorneys general and governors, reaching the same conclusion, are increasingly declining to defend their respective state bans. These weren't all issues involving gay marriage, either, but also cases that "addressed different aspects of discrimination based on sexual orientation, such as discrimination on juries and employment benefits."

"Whatever doubt there may have been … is now gone," Cohen and Lithwick write. "Windsor [the Virigina case], whether it intended to or not, is a powerful decision against discrimination, and for equality."

That vibe is manifesting itself in the Kansas, where the Republican-dominated state legislature has gotten national attention over a controversial anti-gay bill, not just for what it proposes but because it appears to be doomed in a state that is as religious as it is conservative. The bill (here) would have given individuals and businesses the right to refuse service to gays and lesbians on the grounds of "religious liberty." The Daily Beast's Jamelle Bouie describes what it would have legalized:

  • The refusal of service in any sort of public retail establishment (restaurants, grocery stores, movie theaters, dry cleaners, florists, trophy shops).
  • The refusal of service in any sort of state-funded establishment. Says Bouie: "Ambulances can refuse to come to the home of a gay couple, park managers can deny them entry, state hospitals can turn them away, and public welfare agencies can decline to work with them. Yes, the bill requires private managers and state employees to refer the couple to another person who will conduct their business, but in reality, those rules have a habit of falling by the wayside."
  • The refusal of service to non-gays who are attempting to purchase something for a gay couple if the transaction is "related to the celebration of, any marriage, domestic partnership, civil union or similar arrangement." In fact, as long as a prospective transaction is suspected of being gay-related, business owners could refuse it.
  • Any gay couple who challenges such discrimination with a civil suit would have to pay for their opponents' attorney fees.

The bill immediately triggered howls of protest from around the nation (Bouie likened it to Jim Crow laws), but while the measure passed in the Republican-controlled House, it received no support in the state Senate where the Republican leadership said that while the members "support laws that define traditional marriage," they "don't condone discrimination." What's more, the state's business community also opposed the bill, with the Topeka Capital-Journal saying the legislation will have to be "substantially reworked."

As one commenter remarked, "What kind of deity would impel you to treat people badly, or even differently, simply because of who they are?"

Both these legal matters last week are just the latest signpost illustrating how rapidly the issue of gay rights is moving, and also, in looking back further, the scope of that change. It also happens that last Wednesday marked 10 years since then-San Francisco Gavin Newsom defied state law and abruptly began marrying same-sex couples, declaring that gay marriage was coming "whether you like it or not."

The marriages were eventually declared illegal under then-California law at a time when gay marriage had not yet even begun in Massachusetts, the first state to legalize same-sex marriages.

Today, however, the number of people living in the 17 states and the District of Columbia where same-sex marriage is legal numbers 120 million – nearly 40 percent of the U.S. population.

As Lithwick and Cohen suggest, it's both an ironic and bitter pill for social and religious conservatives to actually have the Constitution they so often invoke be the instrument that ultimately advances something they so vigorously oppose.