Less than three months ago, the Supreme Court’s same-sex marriage rulings triggered ecstatic celebrations among gay couples and advocates of equality.  Although the Justices did not strike down laws limiting marriage to straight couples, that decision seemed an inevitable next step.  But in reality, newly filed challenges to state marriage laws have set the table for what may be a catastrophic setback at the Supreme Court.

The Justices’ rulings do point towards an eventual ruling that same-sex couples have the equal right to marry.  The Court is moving along with the tides of history.

The Court held that Congress could not refuse to recognize same-sex marriages endorsed by the states.  And it also turned back an effort to reinstate California’s Proposition 8, which defined marriage as exclusively between a man and a woman.  Those decisions build on two others dating back more than fifteen years, striking down laws that discriminate against gays and lesbians.

But those positive rulings make it easy to miss signals that the Court is not yet ready to announce a constitutional right to same-sex marriage before the states fully consider the issue.  Presented with the perfect chance to issue a sweeping ruling in the California case, the Justices ducked and instead dismissed it on procedural grounds.

At oral argument, center-vote Justice Anthony Kennedy showed no enthusiasm for a broad ruling that would strike down the many state laws and constitutions that still embrace the traditional limits on marriage.  Three more liberal Justices voted to avoid issuing any decision on the issue.

The separate ruling on the federal Defense of Marriage Act case was more encouraging.  But the Court declined to hold that the Constitution requires the federal government to recognize all same-sex marriages.  Instead, it ruled that if a state itself opts to recognize such a union, federal law must respect that choice.

Knowing that the lower courts would scrutinize the ruling, the Court carefully chose its language.  The opinion reasons that laws recognizing same-sex marriage “eliminate inequality” and further the interests of the children of same-sex couples.  But it seems to place principal responsibility to make that choice “within the realm and authority of the separate States,” rather than the federal courts – at least for now.

In dissent, Justice Scalia insisted that the Court’s ruling would inevitably lead it to announce a right to same-sex marriage.  Chief Justice Roberts disagreed.  In truth, both are probably right:  the Court does not yet seem ready to take that significant step, but it could do so at some point in the next five to ten years.

In even that brief time, the number of states recognizing same-sex marriage will probably grow from thirteen to near twenty.  The public’s acceptance of same-sex unions will continue to expand quickly.  And a number of lower courts will begin to recognize a right to same-sex marriage.

Through And it will become even more apparent to the Justices that these marriages are accepted and a valuable part of our diverse national fabric.  Against that backdrop, the Court would be positioned to issue a decision that embraces a change in our social structure that is already well underway, rather than seeming to impose it.

But test cases now racing towards the Supreme Court will arrive there in months, not years.  Following the NAACP’s model, gay-rights lawyers previously tried to bring individual cases that built over several years towards a sweeping ruling in favor of equality.  The next incremental step now would be a ruling that a valid same-sex marriage must be recognized not only by the federal government, but also by other states.

But the moments at which justice seems within reach can present social movements with their greatest tests.  The Court’s recent rulings have lit a fuse that may have a bomb at the other end.  Individual couples who have misread the signals from the Supreme Court instead launched much broader constitutional challenges to the traditional definition of marriage.

Roughly ten cases are already pending.  Soon, several will be decided by the courts of appeals.

Technically, the Justices could stay out of the fray; nothing requires them to hear such a case.  But realistically, the question of whether the traditional definition of marriage is unconstitutional is so important that the Court must decide it.

At most, it might duck the first or second case.  So we are no more than two or three years away from a ruling on the basic question of the definition of marriage.

If a majority of the Court is unwilling to anticipate the tides of history, it will issue a negative ruling that leaves the issue to the states and reject the claims of same-sex marriage advocates.  That decision would almost surely be overturned after social attitudes have evolved further.  But the Court does not reverse itself quickly.  Its 1986 ruling upholding state sodomy laws was not overruled for almost twenty years.

Until then, progress towards changing state marriage laws could stall.  More broadly, such a significant loss could undermine the clarity of the moral message sent by the Court’s rulings that discrimination against gays and lesbians is irrational and wrong.  The Justices’ response to that looming dilemma will be an extraordinary test of their judgment.

Cross-posted at LinkedIn

Posted in Hollingsworth v. Perry, U.S. v. Windsor, Featured, Same-Sex Marriage

Recommended Citation: Tom Goldstein, The untold risks of the Supreme Court’s same-sex marriage decisions, SCOTUSblog (Sep. 19, 2013, 8:41 AM), http://www.scotusblog.com/2013/09/the-untold-risks-of-the-supreme-courts-same-sex-marriage-decisions/