Where Does the Court Go From Here?

Wednesday’s victories for equality in the two marriage cases are very important but they are also very limited. The DOMA ruling forces the federal government to recognize same-sex marriages performed in states that allow them but does nothing to overturn the bans on the practice in more than 30 states. Nor does the Prop 8 ruling. So where does the court go from here? All the way to equality, almost certainly, at some point in the future.

But for now, it’s clear that the court is being relatively cautious. They could have gone all the way to full marriage equality nationwide and much of the rhetoric in Justice Kennedy’s ruling in DOMA could easily have been used in a ruling doing that. The logic and language of his opinion leads inexorably to the conclusion that prohibiting same-sex marriage is a violation of the equal protection clause; the only reason he didn’t go all the way there at this point is the federalism angle in the ruling. But he certainly could have done so and gotten the same 5-4 coalition to go there. So why didn’t he?

Gabriel Arana suggests that the justices “have little desire to get too far ahead of public opinion.” This is a longstanding pattern of the court. They did not invalidate state laws against interracial marriage until more than 25 states had repealed theirs, for instance. So they opted to punt on the Prop 8 case and keep its effect limited and opted to go with a federalism decision on DOMA, again to avoid going too far. And this has been the plan all along:

According to advocates at the major gay-rights organizations, the game plan for winning marriage equality nationwide has long been to achieve a “critical mass” of state recognition for gay marriage, then turn to the federal courts to fill out the rest of the map. While the DOMA ruling is a step forward on the federal level, there remains a patchwork of state laws banning same-sex marriage in place. Gay-rights advocates say the Supreme Court will ultimately have to intervene again. “It’s hard to conceive of getting marriage-equality nationwide without court intervention,” says Brian Mouton, legal director for the Human Rights Campaign, the country’s largest gay rights advocacy organization. “We’ll return to the Supreme Court with more states, more public support, and more momentum on our side,” adds Evan Wolfson, executive director of Freedom to Marry.

And Linda Hirshman argues that it is all but inevitable that the court will go all the way on this issue at some point in one of those cases:

The incoherence of the two standing opinions, taken together, makes it more likely Hollingsworth was simply a decision to duck for a little while longer: There are a bunch of other direct challenges in the pipeline that don’t involve a standing problem. But the language of Windsor foretells that when the court does poke its heads over the trench it will be to make the final charge toward victory.

There are a bunch of cases working their way up that involve direct challenges to state bans on same-sex marriage, cases that don’t have convenient ways for the court to avoid ruling on that core question. And the court can only duck them for so long. As I’ve predicted for the last couple years, I think we’re going to see in 2014 and 2016 a handful of states repeal the bans on same-sex marriage they passed in 2004 and 2006. Once that happens, the critical mass that equality advocates have been seeking starts to become a reality.

It took the court 17 years to go from upholding state sodomy laws in Bower to overturning them in Lawrence. But the pace of change is much faster today in the age of social media, both in terms of public opinion and political considerations. I predict that marriage equality will be a nationwide reality, ordered by the Supreme Court, within 8 years.

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