Magazine article The New Yorker

Southern Honeymoon

Magazine article The New Yorker

Southern Honeymoon

Article excerpt

SOUTHERN HONEYMOON

"We love Mississippi," Jocelyn Pritchett wrote in a blog last month. "The people in this state are generous, kind and loving, and it's a great place to raise a family." No doubt that's true, except that Mississippi refused to acknowledge that Pritchett, a civil engineer, was a married woman. In 2013, in Maine, she had wed Carla Webb, with whom she is raising a six-year-old girl and a two-year-old boy. Both women were born in Mississippi and live there, but the law in their home state said that only one of them had parental rights, so Pritchett and Webb, along with another couple, Andrea Sanders and Rebecca Bickett, the mothers of twin toddler boys, filed suit. In November, Judge Carlton Reeves heard the case in the United States Courthouse in Jackson. It was an unusually chilly day--down to thirty-six degrees--and one lawyer made a joke that turned on the possibility of certain regions freezing over. He said, "Your Honor, many have said that before a court in Mississippi seriously considered same-sex marriage it would be a cold day. It's a cold day."

It's been a year and a half since the Supreme Court declared, in United States v. Windsor, that the Defense of Marriage Act--which prevented the federal government from recognizing same-sex marriages, even if individual states did--violated the Constitution. The decision did not assert a larger constitutional right to marriage, but that didn't stop lower-court judges from finding one in its reasoning. In October, the Court declined to hear challenges to such rulings from three circuits, thus bringing the number of marriage-equality states to thirty-five--including, remarkably, South Carolina. In November, however, the Sixth Circuit upheld bans in four states, and appeals to that decision may force the Court to finally rule in 2015 on whether same-sex couples in all fifty states have a constitutional right to marry.

At this point, the marriage-equality map looks essentially like a CNN projection for a Democratic electoral landslide, with New England and the mid-Atlantic states, plus a good part of the Midwest, the Southwest, the lower Rockies, and the West Coast. But gays and lesbians can also wed in states that the Democrats can only dream of carrying: Utah (after a lawsuit brought by three couples, one of whom runs a hummus business in Salt Lake City, which sells "hummusexual" T-shirts) and Oklahoma (where two Tulsa women filed a suit a decade ago). The final fortress, with the exception of South Carolina, is the Deep South. That is where the last legal battles are likely to be fought, and it is precisely the sort of place that gay-marriage opponents say shouldn't be rushed by the courts, because it's "not ready."

Judge Jeffrey Sutton, who wrote the opinion for the Sixth Circuit, took up the not-ready argument, asking, "Who decides?" He meant the courts or the states, acting through their legislatures or ballot initiatives, which he called, echoing old states-rights arguments, "less expedient, but usually reliable." He suggested that gays and lesbians, rather than fighting in a courtroom, would find it more rewarding to gradually win over "heads and hearts" in their communities and enjoy "earned victories" at the polls. The plaintiffs in the 1967 Supreme Court decision Loving v. Virginia would likely have disagreed. That decision struck down laws banning interracial marriage in sixteen states--many of them the states that currently ban gay marriage. …

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