Rhode Island’s legal regime for same-sex couples could change significantly in 2013. The question is, will the changes come from the General Assembly or the U.S. Supreme Court – or both?
The Assembly’s expected actions are well-known. House Speaker Gordon Fox has pledged a vote on same-sex marriage by the end of January, and opponents are already gearing up to fight it, with the Senate likely to be a battleground. Evan Wolfson, founder and president of the New York-based advocacy group Freedom to Marry, says Rhode Island is already on its radar screen for next year:
[P]roponents of same-sex marriage, who have already worked so hard and made such progress in altering public opinion and securing marriage rights in many states and countries, must redouble their efforts. …
So what can be done in the next six months? First, rack up more state-level victories. …
Along with local families and advocates, Freedom to Marry is already looking to 2013 legislative victories within reach in states like Delaware, Hawaii, Illinois, Minnesota, New Jersey and Rhode Island.
And then there’s the U.S. Supreme Court.
The nine justices made headlines last Friday when they agreed to hear two cases on same-sex marriage, raising hopes on both sides of the debate for an emphatic victory at the federal level. But The New York Times’ Adam Liptak notes that while the court surprised some observers by taking up the cases, “it has left itself plenty of off-ramps” to avoid a sweeping ruling – one of which would have a big impact in Rhode Island.
New York University law professor Kenji Yoshino calls that option “the eight-state solution,” with Rhode Island being one of the eight. Here’s how Yoshino explains what such a judicial ruling could look like:
Yet another breakpoint on the spectrum would focus on the lack of justification for giving same-sex couples all the rights and responsibilities of marriage but withholding the word “marriage” from them. … What is important is not that California went all the way to same-sex marriage and then retreated, but rather that California went all the way to “everything but marriage.” Once it did so, it reached the point of no return. Currently, seven states besides California would be affected by such a ruling: Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island.
Such a ruling could have perverse effects, given that later legislatures that might otherwise have been willing to compromise at “everything but marriage” unions might switch to endorsing only weaker recognition or no recognition at all. Increasingly, however, the popularity of even “everything but marriage” arrangements appears to be waning. Indeed, reports from New Jersey and Rhode Island suggest that same-sex couples are unwilling to avail themselves of civil unions because they are holding out for full equality.
Update: The Atlantic’s Molly Ball just published an exhaustive look at how same-sex marriage advocates prevailed in the November elections, which features Freedom to Marry prominently.
• Related: New WPRI 12 Poll: 56% of RI voters favor same-sex marriage (Oct. 1)