The First Circuit Court of Appeals last week held that the federal Defense of Marriage Act (DOMA) is unconstitutional because it denies married same-sex couples the same federal benefits granted to other married couples. This issue is now clearly headed to the United States Supreme Court which will likely have the final say on the legality of same-sex marriage, perhaps as early as this fall.
Across the country, courts are issuing important legal decisions affecting the lesbian, gay, bisexual, and transgender (LGBT) community. In February, a federal appeals court in California struck down a ban on same-sex marriage instituted by a voter referendum in 2008. Same-sex marriage is now permitted in the District of Columbia and six states. In many cases, legalization was achieved through court rulings.
In the midst of these groundbreaking decisions on same-sex marriage, a much less publicized case in New York truly shows how much public opinion has changed. An appellate court recently concluded that calling someone “gay” no longer qualifies as per se defamation.
The “prior cases categorizing statements that falsely impute homosexuality as defamatory per se are based on the flawed premise that it is shameful and disgraceful to be described as lesbian, gay or bisexual,” wrote Justice Thomas Mercure. Finding this reasoning no longer applied, the court eliminated falsely labeling someone as lesbian, gay or bisexual from the short list of allegations that qualify as per se defamation under New York law.
“In light of the tremendous evolution in social attitudes regarding homosexuality… and the considerable legal protection and respect that the law of this state now accords lesbians, gays and bisexuals, it cannot be said that current public opinion supports a rule that would equate statements imputing homosexuality with accusations of serious criminal conduct or insinuations that an individual has a loathsome disease,” the court concluded.
Of course, changes can be seen in the political landscape as well. Months after announcing that the Department of Justice would no longer defend the constitutionality of DOMA, President Barack Obama publicly came out in support of gay marriage.
Changing legal precedents and political opinions may not directly impact how the Supreme Court will ultimately rule on the constitutionality of same-sex marriage. However, they do signal that a ruling in favor of gay marriage would be far less controversial that it might have been in the past.