Today the Supreme Court announced it would not hear a marriage equality case in the near future, turning down several appeals of lower court rulings that voided bans on same-sex marriage. No doubt this is a disappointment to many who have been waiting for the Court to declare marriage equality a constitutionally protected right. Yet the decision is still a major victory for LGBT rights.
Same-sex marriage is absolutely necessary for our country to fulfill its constitutional promises of equal protection and due process of law. Yet there were good reasons for the Court to hold off on deciding the marriage question this term.
Even without a Supreme Court ruling, it is likely that gay marriage will be the national norm very soon. Nineteen states already allow LGBT people to marry. Some of these states changed their laws through legislation. Most saw courts overturn their marriage bans. The discriminatory marriage laws of twelve other states have also been held unconstitutional, but the rulings have been put on hold pending appeal to the Supreme Court.
Within weeks, many of these stays will be lifted and gay marriage will soon be legal for hundreds of thousands of additional LGBT Americans. Within months, additional court rulings would also likely come down in favor of marriage equality. Indeed, since the Court struck down the Defense of Marriage Act last June, 41 marriage cases have been decided and courts have ruled in favor of same-sex marriage in 39 of them.
It is the emergent consensus in the federal courts that opens up a new pathway for marriage equality. Most LGBT advocates have long suspected that the Supreme Court would have to rule against marriage bans, especially to force conservative states to recognize the freedom to marry. That's worried many who fear that such a ruling from the Supreme Court -- at least until the vast majority of states liberalized their laws -- could trigger a popular backlash like the Court's abortion decision.
While others believe the risk of backlash is minimal, among those who apparently think otherwise is Justice Ruth Bader Ginsburg. A strong proponent of women's right to choose, she has long argued that the Court went too far, too fast in Roe v. Wade, the decision that legalized abortion nationwide. When she echoed those remarks last year when marriage decisions pending, they sounded like a warning.
The risk of backlash is minimized however if the judicial rulings in favor of marriage equality come not from the Supreme Court but from a diverse array of lower federal courts. The rulings are inherently less political. A high court would likely split 5-4, with the liberals on one side (joined by swing justice Anthony Kennedy) and the conservatives on the other. Opponents, including any Republican presidential nominee in 2016, would portray the decision as a liberal judicial fiat imposed on America by partisan justices appointed by Democrats.
Such politicization is far less likely if same-sex marriage comes from the lower federal courts. That's what we've seen over the past year. One ban after another has fallen with barely a whisper of hostile political grandstanding. There's been no backlash.
In the lower courts, we've seen judges from both sides of the ideological spectrum come together in favor of marriage equality. It's far more difficult to claim that partisan leanings explain judicial decisions when many of the judges were appointed by Republicans.
A few years ago, a lower court strategy would have been thought impossible. Yet within the next year or so, most of the 11 federal circuits will likely have weighed in. Given the record so far, it isn't far-fetched for the justices to believe that that nearly all will vote to strike down marriage bans. We could have national marriage equality without the Supreme Court.
If any federal appellate courts go the other way, the Supreme Court will once again have the chance to rule. By then, however, gay marriage will be legal in the vast majority of states -- exactly as LGBT advocates have long hoped. The Court would be ruling in an environment similar to when the justices voided bans on interracial marriage, against which there was no backlash.
There's no doubt that achieving nationwide marriage equality will require a push from the judiciary. It might not, however, need to be from the Supreme Court justices' hands.