Paul Smith, the third leg of a victorious legal stool that includes Theodore Olson and David Boise (Prop. 8), has argued that same-sex marriage will be a reality in the United States by 2015 at the earliest and 2016 at the latest. Smith, who successfully argued Windsor v. United States in 2013 – which struck down article three of the Defense of Marriage Act and, with it, DOMA – predicts that, barring some judicial logjam, the U.S. Supreme Court will decide the issue once and for all by next June. “I think that most observers think there are five [of nine] votes for the pro-equality side — the same five that felt the Defense of Marriage Act was unconstitutional,” Smith was quoted as saying.
There are several reasons to believe that Smith’s predictions are likely. Since 2013 and the ruling on Windsor (which ruled that, in violation of the Due Process Clause of the Fifth Amendment, restricting marriage to heterosexuals only was demeaning and created a second class of citizens), a number of state appeals courts have struck down bans including Utah, Oklahoma, Virginia, Texas, Arkansas, Oregon and Pennsylvania. (In Arkansas and Pennsylvania, the bans were struck down altogether and will not have to wind their ways through the federal appeals court process.)
There is also popular opinion. The millennial generation (those born after 1982) see the matter as settled. Moreover, the shift in public opinion in favor of allowing same-sex couples to marry has shifted dramatically in just a few short years. According to Vox.com, in 2010, only 44 percent of Americans supported the idea. Four years later, 55 percent now agree that marriage should be allowed for same-sex couples. And as Smith was quick to point out, “the Supreme Court follows the election results, too.”
There is, of course, the possibility, however remote, that the Supreme Court will decline to hear the two cases that are farthest along on the Federal Appeals process, Utah and Virginia, thus legalizing same-sex marriage. But Smith thinks that scenario is highly unlikely. “My personal view is that the Supreme Court wants to be the one to decide this issue, not the lower courts,” he says. “So the Supreme Court will probably take it.”
Currently 19 states and the District of Columbia allow same-sex marriage or, in terms of percentages, 43 percent of Americans now live somewhere where it is legal to marry the consenting adult of their choice.
