By: Bonnie Sowell, Junior Editor
There is no doubt that same-sex marriage is a hot topic in this country, both legally and politically. On November 6, 2012, the number of states that recognize same-sex marriage rose to nine along with the District of Columbia. On the other hand, North Carolina recently passed a constitutional amendment denying marriage rights to same-sex couples in the state, but Minnesota voters recently defeated such a constitutional proposal in their own state. With the recent decision in Brown v. Perry holding that California’s state-wide vote overturning Proposition 8 was unconstitutional on equal protection grounds and with a number of challenges being raised to the Defense of Marriage Act, there is reason to believe that the issue of same-sex marriage will get to the Supreme Court in a few years. There are several avenues that the Court could use to confirm or deny that a Constitutional right to marriage for all couples exists. Substantive due process has been popular in the past for gay rights, most notably in the Court’s decision in Lawrence v. Texas in which the Court struck down a Texas law banning same-sex sodomy. In that decision, the Court did a careful analysis of substantive due process asking whether the right to engage in private consensual sex acts is a fundamental right “deeply rooted in this Nation’s history and tradition.” To determine whether the proposed right is fundamental, the Court looks to see whether the State legislatures have overwhelmingly trended a certain way on the issue. In Lawrence, the majority noted that the proper scope of the inquiry is the past fifty years of state legislation. If looking to state laws in that fifty year period reveals a general consensus that the right is protected, the Court will incorporate that right as protected under substantive due process. If no consensus exists, the Court may also look to international law or institute its own judgment.
Because of the state law analysis employed in substantive due process cases, the number of states that have passed legislation or constitutional amendments in the past fifty years about same-sex marriage is particularly important. If the Court finds that the States have trended in the past fifty years toward allowing same-sex marriage, it will likely find such a right to be protected under substantive due process. However, if the Court finds that there has been no such consensus or that the trend is in the reverse, the Court will likely not find the right to be fundamental and thus protected.
In Lawrence, the Court was determining whether to overturn its previous decision in Bowers v. Hardwick, and it thus looked at the trends in state legislation starting from 1986 when Bowers was decided. At that point, twenty-five states prohibited sodomy, but by 2003 when Lawrence was decided, only 13 states had laws on the books prohibiting such conduct, and only four states enforced those laws against homosexual conduct. Of those thirteen states where the conduct was proscribed, there was a pattern of non-enforcement with respect to consenting adults acting in private. Although the Court also relied on international law and the reasoning of other substantive due process cases, the trend against having and enforcing state sodomy laws was a big reason why the Court found the right to engage in same-sex sodomy to be protected.
Because the issue of same-sex marriage has never reached the Supreme Court, we cannot simply look back to changes made since the last decision on the topic was issued. We are instead left to do the analysis of state laws and constitutional amendments within the past fifty years, as put forth in Lawrence. Within that period, thirty three states have passed statutes restricting marriage as between opposite-sex couples, and twenty-seven states have passed constitutional amendments banning same-sex marriage. Only four states and the District of Columbia have passed statutes in the past fifty years allowing same-sex marriage, and six states allow same-sex marriage based on court orders or recent votes at the ballot box. Although same-sex marriage advocates have made great strides in the fight for marriage equality, the nine states plus the District of Columbia that recognize the same-sex marriage right will not be enough to create the national consensus necessary for the finding of a fundamental right under the substantive due process guarantee.
Fortunately, this is not the end of the road for same-sex marriage proponents. There are a variety of other avenues available for recognition of the same-sex marriage right including Equal Protection and Freedom of Association. It is also possible that the Court will further narrow the time period in which it examines state legislation under substantive due process. If this does occur, the work of advocates in getting same-sex marriage rights recognized in states may help further the cause of marriage equality on a national level.
 Maine, Maryland, and Washington adopted same sex marriage provisions on November 6, 2012 by popular vote. Lila Shapiro, Gay Marriage Victory in Maine, Maryland; Minnesota Votes Down ‘Traditional’ Amendment (November 7, 2012) available at http://www.huffingtonpost.com/2012/11/07/gay-marriage-victory_n_2085900.html. Other states recognizing this right include Massachusetts, New Hampshire, Vermont, Iowa, Connecticut, and New York. The District of Columbia also recognizes the right to same sex marriage. Rachel La Corte, Washington Voters Narrowly Approve Gay Marriage (November 6, 2012) available at http://seattletimes.com/html/localnews/2019621858_apwagaymarriage7thld.html.
 Martha Waggoner, Amendment One, North Carolina Gay Marriage Ban, Passes Vote (May 8, 2012) available at http://www.huffingtonpost.com/2012/05/08/amendment-one-north-carolina_n_1501308.html.
 Shapiro, supra note 1.
 671 F.3d 1052 (9th Cir. 2012).
 Adam Liptak, States’ Votes for Gay Marriage are Timely, With Justices Ready to Weigh Cases, (November 7, 2012) available at http://www.nytimes.com/2012/11/08/us/supreme-court-to-begin-weighing-gay-marriage-cases.html?_r=0.
 539 U.S. 558 (2003).
 Id. at 588.
 Id. at 571. (“In all events we think that our laws and traditions in the past half-century are of most relevance here.”)
 478 U.S. 186 (1986).
 Id. at 573.
 Alabama, Arizona, Arkansas, Colorado, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Missouri, Montana, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming.
 Alabama, Alaska, Arkansas, Colorado, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Wisconsin.
 Thomson Reuters, Defense of Marriage Statutes and Constitutional Provisions (2012), a 50 State Survey. Dates researched and compiled by Bonnie Sowell and Keith Waters.
 Connecticut, New Hampshire, New York, and Vermont
 California, Iowa, Maine, Maryland, Massachusetts, and Washington.