The Supremes will pick Gay marriage only when The Temperature has the right number
The Constitution is not a math problem, but numbers can play a role in the Supreme Court’s calculations.
When the court struck down bans on interracial marriage in 1967, such unions were still illegal in 16 states.
When the court struck down laws making gay sex a crime in 2003, 13 states still had antisodomy measures.
Should the court take up the question of same-sex marriage this term or next, as it seems likely to, the unions will be against the law in no more than 15 states.
“The coincidence is hard to miss,” said Susan Sommer, a lawyer with Lambda Legal who has been litigating same-sex marriage cases for more than a decade.
In a brief urging the Supreme Court to hear a same-sex marriage case from Ohio, lawyers for several couples recited the history and pushed the comparison.
Supreme Court Allows Same-Sex Marriages to Proceed in South CarolinaNOV. 20, 2014
Jayne Rowse, left, and April DeBoer, her partner, at a news conference in Michigan, where same-sex marriage is banned.Same-Sex Couples Petition Supreme Court on Right to MarriageNOV. 14, 2014
“The current landscape for marriage recognition for same-sex couples,” the brief said, “looks much the same as it did in 1967 for interracial couples and in 2003 for same-sex intimate partners.”
Walter Dellinger, a former acting solicitor general in the Clinton administration, noted another touchstone. In 1954, when the Supreme Court ruled that segregated public schools violated the Constitution, 17 states still required that children be separated by race.
“Historically, there seems to be a tipping point at which the justices seem more comfortable setting aside state practices,” he said. “When only a third of the states still retain a practice, the court seems ready to act.”
But the comparisons are not completely airtight, said Michael J. Klarman, a legal historian at Harvard Law School.
The decision on interracial marriage in Loving v. Virginia, he said, followed democratic consensus. State legislatures, not judges, had done almost all of the work in driving down the number of bans to 16.
The stunning recent run of victories for same-sex marriage, by contrast, has mostly been the work of judges rather than voters or their elected representatives. In the past two months, the number of states allowing same-sex marriage grew to 35 from 19, as well as the District of Columbia. The surge was entirely the result of court decisions.
The decision in Lawrence v. Texas that struck down antisodomy laws presents a more complicated picture. The decision overruled a 1986 decision, Bowers v. Hardwick. In the intervening years, the number of states with such laws dropped to 13 from 24. Three of the laws were repealed; the rest were struck down by courts.
But Judge Jeffrey S. Sutton, who wrote the majority opinion this month in a decision upholding bans on same-sex marriage in four states — Kentucky, Michigan, Ohio and Tennessee — said the Lawrence decision offered a poor comparison.
“Freed of federal court intervention, 31 states would continue to define marriage the old-fashioned way,” said Judge Sutton of the United States Court of Appeals for the Sixth Circuit. “Lawrence, by contrast, dealt with a situation in which just 13 states continued to prohibit sodomy, and even then most of those laws had fallen into desuetude, rarely being enforced at all.”
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“What right do we have,” he asked, “to say that societal values, as opposed to judicial values, have evolved toward agreement in favor of same-sex marriage?”
On Oct. 6, the Supreme Court turned away petitions seeking a review of appeals court decisions striking down same-sex marriage bans in five states. As is its custom, the court offered no explanation.
The move, coupled with a decision the next day from the federal appeals court in California, lifted the number of states with same-sex marriage into the historical sweet spot of roughly 35.
“It, in effect, allowed the country to go to that point where the country was when the Supreme Court decided Loving and Lawrence,” Ms. Sommer said.
The conventional explanation for the Supreme Court’s refusal to review the decisions was the absence of disagreement among the federal appeals courts. But it may also have been part of a strategy on the left side of the court.
Evidence has emerged in recent weeks that at least two of the court’s most conservative members, Justices Antonin Scalia and Clarence Thomas, were not on board for the tacit expansion of same-sex marriage.
The two justices noted dissents this month from the Supreme Court’s refusal to block same-sex marriages in Kansas and South Carolina. And Justice Thomas, joined by Justice Scalia, issued an intriguing statement on Nov. 13 in an immigration case. “We often review decisions striking down state laws, even in the absence of a disagreement among lower courts,” he wrote, citing the 2012 decision to hear a same-sex marriage case from California.
“But for reasons that escape me,” Justice Thomas continued, “we have not done so with any consistency, especially in recent months,” citing the court’s Oct. 6 orders.
Judge Sutton’s opinion, issued Nov. 6, has now supplied the missing split among the federal appeals court. The court may decide in January whether to review the decision.
The last time the Supreme Court heard arguments on whether there was a constitutional right to same-sex marriage, in the California case, just nine states allowed such unions.
“There was a palpable sense,” Mr. Dellinger said, “that justices sympathetic to the gay rights cause were not eager to take on more than 40 states.”
The court ducked the question that time, ruling instead that the parties before them lacked standing to appeal.
“When the issue comes back again, much of the country will have become a friendlier place for gay marriage,” Mr. Dellinger said. “And that will surely be helpful.”
By ADAM LIPTAK
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