Supreme Court poised to guarantee marriage equality nationwide

The Supreme Court's decision last week to determine whether same-sex couples have the constitutional right to marry everywhere likely will bring marriage equality to the minority of states that still prohibit it, according to Michael Boucai, a UB Law School faculty member who specializes in law and sexuality.

Currently same-sex couples can marry in 36 states and the District of Columbia.

“Assuming the court’s composition doesn’t change in the months ahead, I think we have a pretty good sense what their decision will be,” says Boucai. “All signs point to a ruling in favor of same-sex marriage.”

“In U.S. v. Windsor, where the court struck down a key provision of the Defense of Marriage Act, dissenting Justice Scalia warned that it was only a matter of time before ‘the other shoe’ would drop,” he says. “That time is now upon us.”

The cases will be argued in April and a decision is expected by late June.

Boucai previously cited the “overwhelming” number of judicial decisions finding a constitutional basis for same-sex marriage since the Supreme Court invalidated a key provision of the federal Defense of Marriage Act in U.S. v. Windsor.

“What was once a steady trend is now more like an avalanche,” he said of court after court striking down bans on same-sex marriage.

Boucai has an established record of supporting marriage equality as a legal matter.

“I have always believed that same-sex couples should have the right to marry,” he says. “I have long found certain constitutional arguments in favor of that right to be compelling, as most judges do now.”

His last two research articles also have centered on same-sex marriage. His most recent scholarship has sought to amplify some of the more disruptive aspects of the increasingly innocuous claim to same-sex marriage. “Glorious Precedents: When Gay Marriage Was Radical,” is a study of three same-sex marriage cases brought during the heyday of gay liberation in the years immediately following the Stonewall riots of 1969. It is forthcoming in the Yale Journal of Law & the Humanities. A prior article, “Sexual Liberty and Same-Sex Marriage: An Argument from Bisexuality,” challenged the constitutionality of using marriage law to steer individuals into heterosexual relationships.