There has been much ado made in the media and legal circles about the U.S. Supreme Court’s decision Monday to pass on appeals from five states involving same-sex marriage, kicking off a busy week on the same-sex marriage front.
Virginia, Indiana, Wisconsin, Oklahoma and Utah had appealed decisions that overturned their bans on same-sex marriages. The Supreme Court, by refusing to hear the appeals, effectively required those states to permit same-sex marriages.
That also means other states covered by the 4th, 7th and 10th circuits — Colorado, Kansas, North Carolina, South Carolina, West Virginia, and Wyoming — also will have to legalize gay marriage.
In fact, on Wednesday a Kansas judge in the state’s most populous county ordered officials to begin issuing marriage licenses and the governor of West Virginia did the same in that state, making it the 27th to legalize same-sex marriages with at least four more to come in the near future. That means about 65 percent of Americans either live or soon will live somewhere with the freedom to marry.
On Monday, same-sex marriage became legal in Oklahoma, Utah, Virginia and Wisconsin. On Tuesday, it became legal in Colorado and Indiana.
Also on Tuesday, the 9th Circuit U.S. Court of Appeals in California ruled that the bans in Nevada and Idaho were unconstitutional. That ruling could also affect Alaska, Arizona, and Montana.
On Wednesday, the Supreme Court put a temporary hold on same-sex marriage moving forward in Nevada.
At this point, it is truly an unstoppable juggernaut. The other states will inevitably begin permitting same-sex marriages in the next few years. We have now, essentially, hit critical mass.
Unfortunately, here in Ohio, same-sex marriage is banned via the state constitution, though a federal judge earlier this year said Ohio must recognize out-of-state marriages.
While the court’s action would appear to be a win for proponents of same-sex marriage, neither side was happy with the decision because both sides would like for the court to weigh in decisively on the issue and settle the matter once and for all for the entire nation. Indeed, more than 30 states had asked the court to take on the issue.
Unfortunately, that is not how our system works.
Usually, the court takes cases when the appellate courts disagree. So far, all federal appellate courts have been consistent in finding that bans on same-sex marriage are unconstitutional. Indeed, at the trial court level, state and federal, the cases have been 40 for same-sex marriage with only two ruling against it. Therefore, there is really no need for the Supreme Court to weigh in, yet.
As long as the appellate courts continue to agree, the court will simply wait until the point becomes moot and then it might take a token case to put the final nail in the coffin.
This happens quite often. One notable example was interracial marriages.
As the states began allowing interracial marriages, the court passed up several opportunities to weigh in. Finally, in 1967, when the court struck down bans on interracial marriages, it was almost pointless. Only 16 states still had bans and they were mostly in the South.
So, from the perspective of the Supreme Court justices, there is really no need to wade into the issue. Unlike interracial marriages, public opinion on same-sex marriage is falling on the right side of history in supporting it, which is another reason for the court to keep its distance, at least for now. This is especially true among younger voters. More than 60 percent of Republicans under the age of 30 support same-sex marriages.
Waiting is the right approach to take. The court has often chosen to allow social change to take place slowly and incrementally, which is wise.
Forcing people to change never works and often causes more problems than it solves. Had the court exercised the same restraint in the Roe v. Wade decision, the political and legal landscape surrounding abortion might be very different today.
Meanwhile, as the court sits idle, more people are gaining the freedom to marry whom they wish. And that is a good thing.