Monday morning’s announcement that the U.S. Supreme Court had rejected appeals from several states seeking to ban same-sex marriages was commonly considered a nondecision decision, a tacit affirmation of appellate court rulings that had overturned laws that barred the marriages.
In truth, the Supreme Court actually decided the issue more than a year ago when it ruled as unconstitutional the federal Defense of Marriage Act passed in 1996. In a pair of decisions, June 26, 2013, the court invalidated the act that had denied federal benefits to legally married gay couples and elected not to hear a challenge that sought to reverse a lower court’s decision to overturn California’s same-sex marriage ban.
Lower courts, obviously, took heed of the ruling against DOMA. Since then three appellate courts have ruled against same-sex marriage bans in five states. Pending cases in six other states within those three circuits are a certainty now to resolve the same way, bringing to 30 the number of states where same-sex marriage is legal.
There was surprise, even criticism, that the Supreme Court had demurred to the lower courts, that it had side-stepped the issue and would not provide a definitive ruling for all 50 states.
Justice delayed, even if it is just for two-fifths of the union, remains justice denied. Gay couples can or will soon be able to be married in any of those 30 states. But no couple in the other 20 should have to travel across state lines to get a marriage license. Even so, justice in those other 20 states is not likely to be denied for much longer.
If any federal circuit court does uphold a gay marriage ban, the high court will have no choice but to hear and rule on the case. Granted, the Supreme Court remains as divided as ever, and a justice’s death or retirement could potentially upset its current balance. But reversing its course at this point seems unlikely if not impossible. If the conservatives on the court had any hope of upholding bans on gay marriage they would have spoken today and would not have forever held their peace.
Opinion polls, the most recent taken in September, find that 55 percent to 56 percent of Americans are supportive of same-sex unions. Those Americans opposed account for 37 percent to 38 percent. Compare those figures to the 28 percent in 1996, when DOMA became law, who supported gay marriage and the 68 percent who opposed it.
The Supreme Court, its silence speaking loudly, can’t turn back, because the American public won’t turn back.
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