This week, federal judges in Kentucky and Virginia struck down parts of state constitutional amendments designed to prohibit same-sex marriage. Recently, state and federal judges made similar rulings in Utah, Oklahoma New Mexico and New Jersey.
In Kentucky, District Judge John G. Heyburn (who was appointed by George H.W. Bush) ordered the state to recognize same-sex marriages that had been legally performed in other states. His ruling also opened the door for litigants to contest Kentucky's prohibition of same-sex marriage in its entirety.
In rendering his decision Heyburn alluded to the nation's civil rights struggles against sexism and racism.
"For years, many states had a tradition of segregation and even articulated reasons why it created a better, more stable society. Similarly, many states deprived women of their equal rights under the law, believing this to properly preserve our traditions.
"In time, even the most strident supporters of these views understood that they could not enforce their particular moral views to the detriment of another's constitutional rights. Here as well, sometime in the not too distant future, the same understanding will come to pass."
Heyburn also indicated that he expects the Supreme Court of the United States will eventually strike down all constitutional bans on same-sex marriage.
"Sometime in the next few years at least one other Supreme Court opinion will likely complete this judicial journey," he wrote.
In United States v. Windsor, the Supreme Court ruled DOMA violated the principle of due process and equal protection under the law made inviolable by the Fourteenth Amendment of the U.S. Constitution.
Matt Pearce, writing for the Los Angeles Time, noted that since the SCOTUS decision, judges have been wrestling with the high court's logic, which, while it voided part of the federal Defense of Marriage Act, didn't say whether state bans were outright constitutional.
"But how those judges have ruled have made one thing clear: The Supreme Court's ruling gave a significant amount of legal ammunition for gay and lesbian couples to challenge those bans in even the country's most conservative states," wrote Pearce.
In Virginia, U.S. District Court Judge Arenda L. Wright Allen (who was appointed by the sitting president) wrote that Virginia's Marriage Laws unconstitutionally deny Virginia's gay and lesbian citizens the fundamental freedom to choose to marry.
"Government interests in perpetuating traditions, shielding state matters from federal interference, and favoring one model of parenting over others must yield to this country's cherished protections that ensure the exercise of the private choices of the individual citizen regarding love and family."
Judge Terence C. Kern (who was appointed by Pres. Bill Clinton) of United States District Court for the Northern District of Oklahoma wrote the state's ban was "an arbitrary, irrational exclusion of just one class of Oklahoma citizens from a governmental benefit."
But don't expect the ignoble politicians who fan the flames of intolerance for their own venal purposes to reevaluate their positions.
Ted Cruz, of Texas, and Mike Lee, of Utah, have introduced the "State Marriage Defense Act," which would prohibit the federal government from recognizing same-sex couples' marriages if they live in a state that doesn't recognize them. Any guess what political party they are members of? (Here's a hint: It's the same party that wants government out of their donors' boardrooms but in your bedroom.)
"The Obama Administration should not be trying to force gay marriage on all 50 states," stated Cruz. "We should respect the states, and the definition of marriage should be left to democratically elected legislatures, not dictated from Washington. This bill will safeguard the ability of states to preserve traditional marriage for its residents."
Cruz and Lee are the personification of hypocrisy. They preach small government but want their version of small government to be able to tell people who they can or cannot marry, who can or cannot vote or get health care, who can or cannot get access to contraception or abortions and who must submit to drug testing to receive government support.
One thing is certain about Cruz, Lee and their ilk: They know their demographic and they know how to whip up their base. But they can't be blind to the changes all around them.
While there will always be homophobes, bigots, racists and misogynists, recent polls show that nationally, 54 percent of Americans support same-sex marriage while 43 percent oppose it. According to the New York Times, that's almost a complete flip from a poll that was taken in 2002. That same year, Nevadans passed a constitutional ban in a 67 to 33 percent vote, but a recent poll conducted by the Retail Association of Nevada shows 57 percent of Nevadans now support same-sex marriage while only 30 are opposed to it. In response to that change, and the DOMA decision, the Nevada Attorney General recently announced her office would no longer attempt to defend its constitutional ban.
Even though Cruz and Lee and the rest of that bunch surely can't be unaware of where the trends are pointing to, they seem more concerned with the next election cycle and currying campaign contributions than actually doing something useful for the country (as an example -- the nearly 50 votes to repeal the Affordable Care Act). But it's not really about making a positive difference in the lives of the majority of Americans; it's about publicity, money and staying in office until they can wrangle a lucrative lobbying career.
Cruz and Lee are also quick to drag out of the closet the epithet "activist judges," accusing them of social engineering, being intent on eroding the traditional family while instituting their liberal agenda. But these judges come from across the political spectrum and they have one thing in common: An abiding respect in the Constitution and the protections it guarantees to all Americans, and not just a privileged few.
Kermit Roosevelt, a law professor at the University of Pennsylvania Law School and the author of "The Myth of Judicial Activism" argues that "in practice ‘activist' turns out to be little more than a rhetorically charged shorthand for decisions the speaker disagrees with."
And no less a great thinker than Supreme Court Justice Anthony Kennedy once said "An activist court is a court that makes a decision you don't like."
But that's the point of having the courts -- they are the counterbalance that is intended to ameliorate the effects of transient majoritarianism and to protect the rights of the minority. While the courts have often been slow in offering equal protection under the law, in the past 50 years most of the decisions have opened the door to more and more Americans participating freely and fully in civic life.
Ensuring the right of gays and lesbians to marry and gain access to all the benefits that marriage conveys is perhaps the final battle of the Civil Rights Era. We are sorry it took this long, but we welcome it profoundly.