SINCE THE Supreme Court struck down the worst parts of the Defense of Marriage Act in United States v. Windsor last year, lower courts have been using the logic of the ruling to sweep away state bans on same-sex marriage. On Monday, the Supreme Court declined to second-guess the appeals courts that have pronounced so far, allowing their pro-marriage rulings to be implemented across every state those courts cover. The justices’ non-intervention is a win for fairness.
Monday’s decision will allow same-sex marriage to go forward in 11 more states, for a total of 30 plus the District of Columbia. The action surprised many court-watchers, but in retrospect it makes sense. In this century the court has moved cautiously and incrementally with respect to the rights of gay men and lesbians but always in the right direction — toward equality. From its 2003 ruling barring anti-sodomy laws, its decisions have encouraged, and allowed time for, public opinion to shift. There has been no counterproductive national backlash, which could not have been ruled out in a country in which, until recently, same-sex marriage bans regularly won popular approval. In the past few years, public opinion has shifted markedly. And as lower courts toppled marriage bans over the last year, the legal action obtained a measure of democratic legitimacy in states where elected officials, such as Virginia Attorney General Mark Herring (D), declined to defend discriminatory laws.
By standing back this fall, the court further encourages the movement toward equality, though that advance will be uneven across the country. A minority of states will be able to maintain marriage bans, a plain injustice in our view. There will be legal headaches for gay and lesbian couples who move from states that allow them to marry to states that do not.
But Monday’s decision strengthens the sense that the Supreme Court will decline to stem the trend it has already abetted. From here, a negative ruling on same-sex marriage could lead to “legal chaos,” according to SCOTUSblog’s Lyle Denniston. The court’s strong signal may affect the thinking of those courts still considering same-sex marriage cases. If no appeals court ends up ruling against same-sex couples, the justices may not have to consider the matter at all for same-sex marriage to become reality across the nation.
The court has not settled all the legal issues. Even as the justices push in the general direction of equality, they have not set out the reasoning the court prefers to get there. Until that is resolved, the legal status of gay men and lesbians, a group that deserves protection as a minority historically targeted for discrimination, will remain unclear. But, unless the court just executed one of the greatest legal head-fakes ever, Monday’s decision points toward the eventual establishment of a national right protecting same-sex marriage.