Same-sex marriage is now legal in 37 states, a clear majority, and the District of Columbia. That makes it appear as if there has been a “cultural shift” towards same-sex marriage throughout much of the country. However, such a conclusion does not accurately reflect the prevailing public opinion on marriage. In fact, in 26 of those 37 states, same-sex marriage was legalized through court action, by individual judges who struck down state marriage laws and constitutional amendments that were supported by the voters and legislatures of those states. Thus, the re-definition of marriage was forced unwillingly upon two-thirds of the “shifted” states by the courts. The reality is that only 11 states legalized same-sex marriage through the will of the People and their elected representatives. The supposed “cultural shift” in favor of same-sex marriage is a misconception and an incorrect characterization of current American thought and culture.
Here are the facts:
– Eleven (11) states legalized same-sex marriage through the democratic process: 3 states through voter referendum (ME, MD, WA), and 8 states through their state legislatures (DE, HI, IL, MN, NH, NY, RI, VT).
– Thirty Nine (39) states defined marriage (by law, constitutional amendment, or both) as between one man and one woman and banned same-sex marriage through the democratic process. Thirty one (31) of these 39 states banned same-sex marriage by popular vote, and eight states banned it through their state legislatures. This means that the current public opinion of the majority of the citizens and elected representatives in these states favors the conjugal view of marriage and opposes same-sex marriage. These laws and amendments were not old laws reflecting an outdated point of view from a bygone era but laws which have been passed since 1998.
o Twenty six (26) of these states had their laws and/or constitutional amendments struck down by judicial decree. Same-sex marriage was legalized in these states through court decision, in opposition to the peoples’ expressed will against it (AL, AK, AZ, CA, CO, CT, FL, ID, IN, IA, KS, MA, MT, NV, NJ, NM, NC, OK, OR, PA, SC, UT, VA, WV, WI, WY).
o Eight (8) of these states had their laws and/or constitutional amendments struck down by judicial decree, but these rulings are on hold pending the upcoming Supreme Court case  on marriage (AR, KY, LA, MI, MS, MO, SD, TX).
o Five (5) of these states have marriage laws that have not been struck by the courts (GA, LA, ND, OH, TN).
How has the Supreme Court contributed to this misconception of a “cultural shift” towards same-sex marriage?
The Supreme Court’s refusal to hear same-sex marriage appeals this past October, 2014 was a tacit victory for same-sex marriage advocates. Rulings from the 4th, 7th and 10th Circuit Courts that overturned the marriage laws in Indiana, Wisconsin, Virginia, Oklahoma and Utah were on hold, pending their appeal to the Supreme Court. But when the Supreme Court denied those appeals, it let those rulings stand and take effect, legalizing same-sex marriage by court decision and forcing a new definition of marriage in those states.
The Supreme Court’s decision not only affected those five states – it also affected other states within the same circuits, since state courts are supposed to follow precedent set by their higher circuit court. Within days, the laws of three states in the 4th circuit (NC, SC, and WV) and of three states in the 10th circuit (CO, KS, WY) that defined marriage as between one man and one woman were struck down. Although the Supreme Court simply declined to hear the marriage appeals, the effect was to catalyze a proliferation of legal same-sex marriage.
The Supreme Court made a similar move earlier this month on February 9, when it denied the State of Alabama’s plea to stay a federal court decision that overturned Alabama’s same-sex marriage ban. The ban, a constitutional amendment defining marriage as between one man and one woman, was enacted in 2006 by an 81% ballot vote. Although the marriage amendment was widely supported by the citizens of Alabama, the Supreme Court’s action this February single-handedly forced a new marriage law on Alabama.
It’s been highly publicized that same-sex marriage has been legalized in 37 states and the District of Columbia. What has not been so highly publicized is that the vast majority of those states – 26 out of 37 – did not want to legalize it. For example, in South Carolina, same-sex marriage was banned at the ballot box by 78%. In Oklahoma, it was banned by a 76% vote, and in Kansas by a 70% vote. Same-sex marriage was legalized in those states by the action of judges, not by the People or their elected state legislatures.
Based on the facts, there has not been a cultural shift in America that overwhelmingly favors same-sex marriage. If you want to know what Americans think about same-sex marriage, look at ballot box results and look at laws and amendments that were properly enacted through elected representatives in state legislatures – don’t look to the courts.