Gay rights supporters were simultaneously jubilant and perplexed Monday when the Supreme Court announced that it wouldn't review three decisions by federal appeals courts striking down state bans on same-sex marriage. We share their mixed feelings.
Jubilation is justified because the court's action clears the way for same-sex marriages not only in the five states whose laws were declared unconstitutional but in several others as well, contributing to what is beginning to look like an inexorable march to the legalization of such unions nationwide. After Monday's action by the court, same-sex marriage will be legal in 24 states, a number expected to climb to 30 in the coming months. Such a legal landscape was inconceivable even a few years ago.
The perplexity comes from the fact that the justices shrank from making a definitive ruling on marriage equality, consigning same-sex couples in states where prohibitions will remain in place to second-class status and leaving open the possibility that bans might be reinstated someday in the states where they have been struck down. The court could and should have ended the uncertainty by taking the cases it turned away on Monday and affirming the rulings of the lower courts in favor of gay marriage.
The court's preferred practice is to wait until there is a disagreement between federal appeals courts on an issue and then step in and resolve the conflict. That approach also serves the purpose of providing the justices with a diversity of arguments on both sides. But even though no appeals court has upheld a state ban on same-sex marriage — two additional appeals courts could rule soon on the issue — the arguments for and against marriage equality have been amply ventilated in majority and dissenting opinions and in a cottage industry of legal scholarship. Given that fact and the importance of the issue in the lives of real people, the court shouldn't have waited for a "circuit split."
Like Kremlinologists who used to scrutinize the reviewing stand at May Day parades in Moscow, journalists and scholars have been busy trying to divine the reasons for the court's decision not to decide. Perhaps conservative justices were willing to allow same-sex marriages to go into effect in additional states rather than force a definitive nationwide ruling they might lose. Liberal justices who favor gay marriage likewise may have preferred to bide their time in the hopes that additional "facts on the ground" would make it easier for Justice Anthony M. Kennedy, the presumed swing vote, to declare unambiguously that human rights trump states' rights.
Fascinating as this guessing game may be, it needlessly puts off an inevitable day of reckoning. The court's approach looks less like "deliberate speed" than dithering. The sooner it ends, the better — for long-suffering gay couples, for the legal system and for the country as a whole.