Which State Will Accept Gay Marriage Next?

The state of Virginia just lost a case in federal court today, and I daresay it will not appeal the ruling. A federal district judge has ruled, as is their wont, that Virginia's laws prohibiting same-sex marriage violate the Fourteenth Amendment of the Constitution, and are hence invalid. The interesting thing is that Virginia's governor is a Democrat. Not only that, but so is the Attorney General! Mark Herring won a nail-biter of a race last year, by far the most exciting of Election Night 2013. He has since announced that he thinks Virginia's anti-gay marriage laws are some combination of bad and unconstitutional. Presumably he won't appeal. If that's right, it means Virginia's a gay marriage jurisdiction as of right now. Okay maybe as of whenever they dig out from under the current snowstorm. And this has me thinking, what other states might find themselves joining the marriage equality ranks without any further political action? That is, what states might accept a ruling by a federal judge striking down their anti-gay marriage laws, and decline an appeal?



Such a state would need to have both a current law against gay marriage and a government opposed to that law, i.e. a Democratic government. One might think that would mean a Democratic Governor, by analogy to the federal government, but many states elect their Attorneys General independently. In theory a Democratic A.G. could decline to appeal an adverse ruling on gay marriage despite his or her Republican Governor's protests, or a Republican A.G. file an appeal contrary to the wishes of a Democratic Governor. There are twelve states beyond Virginia which do not have gay marriage and have either a Democratic A.G. or a Democratic Governor: Colorado, Nevada, Oregon, Arkansas, Kentucky, Missouri, Mississippi, North Carolina, Pennsylvania, Tennessee, Montana, and West Virginia. The first three have civil unions and state constitutional prohibitions on gay marriage. The others all have no recognition of same-sex partnerships, and all except West Virginia and Pennsylvania have constitutional prohibitions on gay marriage.

Oregon, Arkansas, Kentucky, and Missouri have both their Governor and their A.G. Democratic. I am skeptical that, as a matter of politics, an Arkansas or Kentucky Democrat could decline to appeal a gay marriage ruling. I'm not sure about Missouri; you'd kind of think they'd be in the same boat, but they're a lot closer to the borderline. As for Oregon, I think it's the clearest case: if Oregon's gay marriage laws are struck down by a federal court, I'd be stunned if they appealed.

Nevada, Mississippi, North Carolina, Pennsylvania, and Tennessee have a Democratic A.G. and a Republican Governor. All five of these Attorneys General are independently elected, of course, and can defy their Governor. I don't necessarily know whether these states give the Attorney General the right to decide whether or not to appeal an adverse ruling in federal court, but it's a decent working assumption. Nevada and Pennsylvania are sufficiently purple states that I think the A.G. would be making a reasonable political choice to support a ruling against the gay marriage law. In Nevada, actually, the governor, Brian Sandoval, is sort of a genuine moderate, though he'd probably want to appeal the law anyway, if he could. Mississippi, Tennessee, and North Carolina, in that order, seem infertile ground for a decision to accept a gay marriage ruling.

Colorado, Montana, and West Virginia are in the opposite situation: Democratic Governor and Republican Attorney General. Assuming the A.G.s have the authority to file appeals, they would all certainly do so, though in Colorado at least this would likely not be a winning political calculus.

I will just add that Wisconsin has a mixed gay marriage situation: their constitution prohibits both gay marriage and certain other forms of recognition of same-sex couples, but they have laws granting some rights to those couples. They have a Republican Governor and a Republican Attorney General, however, so they would be certain to appeal a ruling against the state on this matter.

We're left with Oregon as the clearest example of a state that would probably accept a gay marriage ruling, followed by Nevada and Pennsylvania. Now, these states aren't the breeding ground for a case that could end the gay marriage struggle once and for all; that will most likely come from one of the 19 states with gay marriage prohibitions and fully Republican administrations. But in addition to Virginia's 8 million people who have apparently just joined the enlightened territories on this issue, Oregon, Nevada, and Pennsylvania could add another nearly 20 million with relatively little fighting required. That's not nothing.

So, gay Oregonians: start your lawsuits!