The Supreme Court's decision not to review rulings legalizing gay marriage in five states suggests that the expansion of same-sex marriage in states that once banned it will likely continue without interference from the high court. But it also raises the question of how long until every state in the country will allow same-sex couples to marry, or whether some states never will without a Supreme Court ruling legalizing marriages nationally.
For some time, advocates of allowing same-sex couple to marry have pointed to the country's history with anti-miscegenation laws -- bans on marriage between the races -- as an example of the march of progress. A century ago, marriage between blacks and whites was still illegal in more than half of the states. With the Supreme Court's 1967 decision Loving v. Virginia, the 17 states that still had laws banning the practice found their laws invalidated. (Data below is from LovingDay.org.)
What's interesting is that, in the decade prior to Loving, laws in a number of states were repealed by state legislatures or thrown out by the courts. It's hard not to see parallels in the current momentum against gay marriage bans. A decade ago, Massachusetts' Supreme Court legalized gay marriage. As of Monday, it appears that more than half of the states have legalized gay marriage.
Length of time states barred interracial marriage
But what if Loving didn't exist? What would have happened if the Court hadn't invalidated bans on interracial marriage? Anti-miscegenation laws were more deeply rooted than anti-same-sex-marriage laws, and it seems clear that the march of repeal would hit a line of opposition that had previously been demarcated by Mason and Dixon. The court's decision in Loving overturned a ban on interracial marriage in Virginia that was three centuries old, predating even the United States. No states currently have even unenforceable bans on the books -- but 20 years ago, that wasn't the case. In November 1998, South Carolina finally threw out its ban following a public referendum. But Alabama was the last state to do so -- overturning its (unenforceable) ban in 2000.
In South Carolina, 38 percent of voters wanted to keep the law on the books. In Alabama, the figure was 40 percent. Without Loving, it's not clear if those states might have acted sooner. After all, there was only symbolic pressure on them to take action. But it is clear that they likely wouldn't have acted in 1967.
Without a similar Supreme Court decision on same-sex marriage, it's not clear when or how the states on the map below might change, either.