By deciding not to decide, the Supreme Court may have decided: If history is a guide, same-sex marriage will soon be the law of the land.
The court’s refusal to take up cases brought by five states seeking to overturn appellate court rulings in favor of gay marriage – Indiana, Oklahoma, Utah, Virginia and Wisconsin – was a surprise. It does not mean that Chief Justice John Roberts and the conservative majority have gone all “Kumbaya.” But it can be seen as a surrender to the inevitable.
The justices’ decision not to intervene means that same-sex marriage is now legal in 24 states plus the District of Columbia. Six other states – North Carolina, South Carolina, West Virginia, Kansas, Colorado and Wyoming – must also heed the appeals courts whose rulings the justices allowed to stand.
This means that in three-fifths of the states plus the nation’s capital, gay marriage would be considered a constitutional right. I’d call that a tipping point.
The obvious historical touchstone is the court’s 1967 ruling in Loving v. Virginia, which struck down laws banning interracial marriage. At the time, large majorities throughout the South opposed legalizing marriage between blacks and whites. But only 16 states still had laws on the books banning unions that were sneeringly referred to as miscegenation.
It is hard for our children to believe that such bigoted laws ever existed. After today, it’s reasonable to expect that our grandchildren will be equally puzzled about laws against same-sex marriage.
I don’t get to write the following words very often, but Justice Antonin Scalia was right.
Not about gay marriage, of course. Scalia is so antediluvian that he has trouble forcing himself to call it by its proper name. In his dissents, he tends to use the phrase “homosexual sodomy,” which he believes the states should be free to condemn and punish. His tone seems to long for the days of the pillory and stocks.
But he saw – more clearly than some justices, and more honestly than others – that the court’s decision last year striking down the federal Defense of Marriage Act was a landmark ruling that would ultimately establish gay marriage as an inalienable right.
“By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition,” Scalia wrote.
Last year’s ruling sought to walk an impossibly fine line. Ostensibly, it did not establish a right to same-sex marriage. But it made a powerful moral and constitutional argument for doing so. Scalia referred to this as “legalistic argle-bargle.”
In a host of rulings since then, federal appeals courts have been unanimous – and judges in the lower federal courts nearly so – in interpreting the Defense of Marriage Act decision the way Scalia does: as a declaration that the government has no more right preventing marriage between two men or two women than between blacks and whites.
As ruling after ruling struck down state bans, whether enacted by statute or enshrined in state constitutions, legal analysts predicted the Supreme Court would have to weigh in with a clarification: Yes, we meant that same-sex marriage is a protected right, or no, we didn’t. The court surprised almost everyone by declining to revisit the issue at all.
There is sound legal reasoning for this demurral: Since the various courts of appeal have so far come to the same conclusion, there’s no dispute for the Supreme Court to settle. If at some point there is an appeals court ruling to the contrary – holding that states do have the right to ban gay marriage – then at that point the justices could step in.
But the court must be aware that by failing to act, it is giving the appeals courts a green light to proceed – and creating facts on the ground that will be all but impossible to erase.
Monday’s non-action means that many more same-sex couples will now be able to marry, and that their marriages – and others – will be recognized in more states. President Obama and Attorney General Eric Holder have taken steps to ensure that the marriages will also be recognized by the federal government.
Months and years will pass. The world will not come to an end. States will be unable to claim any compelling interest in banning gay marriage, since so many Americans will have survived its legalization just fine.
It’s over. Hoorays are definitely in order.