The Supreme Court’s refusal to accept any of the seven petitions for review of lower court rulings on same-sex marriage took many court observers by surprise, since the conventional wisdom was that either the justices in favor of SSM would seize the opportunity to legalize it nationwide with a single stroke, or the justices opposed would want an opportunity to overturn those lower court rulings in favor. While everyone tries to figure out what motivated the Supremes to take a pass on all seven opportunities, the simplest explanation should be kept foremost in mind: there was no split between the lower court rulings, and hence no compelling reason to get the Supreme Court involved.
Bloomberg News reports:
The U.S. Supreme Court rejected calls for a nationwide ruling on same-sex marriage, a rebuff that lets gays marry in as many as 11 new states and leaves legal uncertainty elsewhere.
The denial today of seven pending appeals defied predictions. Advocates on both sides had urged the justices to resolve the issue following a wave of lower court rulings that the Constitution guarantees same-sex marriage rights.
The rejection lets three federal appeals decisions take effect, legalizing same-sex marriage in Utah, Oklahoma, Virginia, Wisconsin and Indiana. Six other states — Colorado, Wyoming, Kansas, West Virginia, North Carolina and South Carolina — will likely follow because they fall under the jurisdiction of those appellate courts.
Those additions will bring the number of gay-marriage states to 30, plus the District of Columbia.
Which illustrates one possible reason the pro-SSM justices decided to leave this alone: there’s no reason for them to get involved. Gay marriage is pretty much unstoppable now, more as a result of court decisions than positive votes in favor by the people of the states. The court rulings left alone by the Supremes mostly represented successful challenges to anti-SSM laws. There have been proactive votes in favor of same-sex marriage too, but a lot of the heavy lifting has been accomplished by judges. It’s best to push these massive societal realignments through the courts, since representative democracy is so messy.
Those rulings will, in turn, inevitably influence any votes on the matter that might take place in the remaining states, as the perception of such votes becomes more about holding back an irresistible tide, rather than enthusiastically agreeing to the redefinition of marriage. The people, as a whole, don’t have to enthusiastically agree. They just have to abandon energetic resistance to those who desire the legal acceptance of same-sex marriage. Our common culture doesn’t put much faith behind traditional marriage – it’s held to be somewhat quaint at best, and a hypocritical institution of the patriarchy at worst – so the energy has been draining away from resistance for a long time.
That same common culture does put a great deal of emphasis on tolerance, by which it really means something closer to affirmation. Quite simply, for many people, the value of insisting on the traditional definition of marriage has become insufficient to justify making same-sex couples feel excluded or diminished. Such value judgments are part of what defines a society. It would be ideal if such a profound change as the redefinition of marriage was made legislatively by elected representatives, but that was never the strategy. The result is a highly successful effort to illustrate how energy can be more important that numbers, or the weight of tradition.
Whether one agrees with the results or not, it is wise to learn from the example. Soon enough, some of those who cheer the legal triumph of same-sex marriage will be the ones talking about something far less venerable than marriage as a “settled” custom that cannot be criticized or changed.
As for the marriage question, I always have thought it was an institution worth preserving in its traditional form, for positive reasons that have nothing to do with maliciously excluding or insulting anyone. Advocates of same-sex marriage often argue that marriage between men and women can be reinforced and restored to prominence without restricting marriage to them alone. Some wonder if the end of the Marriage Wars will be followed by society digesting what is, after all, a change affecting a relatively small segment of the population, and emerging largely unchanged… assuming we can sort out the tricky business of respecting the conscience of those who refuse to endorse or participate in same-sex weddings. I hope those arguments are proven correct. With the Supreme Court out of the picture, it seems likely they will be put to the test.