The Supreme Court's Decisive Indecision

By inaction, it effectively legalizes gay marriage in most of the U.S.
A couple poses for a photo outside the courthouse in Hudson, Wis., on Oct. 6 Photograph by Renee Jone Schneider/The Star Tribune via AP Photo

The U.S. Supreme Court declined on Oct. 6 to review seven appeals of same-sex marriage rulings by lower courts. The practical effect is that such marriages may proceed in Virginia and Wisconsin as well as in the less socially liberal environs of Indiana, Oklahoma, and Utah. Six other states—Colorado, Kansas, North Carolina, South Carolina, West Virginia, and Wyoming—fall under the jurisdiction of the three appellate courts whose rulings now stand uncontested.

In a previous ruling, without affirmatively asserting that gay marriage is a constitutional right, the court struck down a federal law that denied benefits to same-sex married couples.

Given the pace and direction of rulings in the lower courts, where same-sex marriage proponents have been enjoying a winning streak, the Supremes’ reticence suggests two inclinations: first, that the court is content to let gay marriage take root throughout the country and, second, that it wants to avoid settling the still-contentious issue in one fell swoop.

The court is on the right path, even though its unwillingness to settle the matter exacts a high price from gay Americans seeking dignity and equality under law.

The tide of legalization will not be reversed. The nondecision leaves a minimum of 24 states and a maximum of 30 allowing gay couples to marry. In the meantime, public support has passed the majority threshold; among the young, it’s overwhelming.

A more robust consensus will take more time. The example of Brown v. Board of Education is instructive. The court’s demand for equal access to public education, a unanimous ruling rooted as deeply in social justice and human dignity as any it has delivered, is unequivocal on paper yet still unrealized 60 years later.

It’s possible that the Supreme Court sidestepped the same-sex marriage cases because it prefers to let gay rights gather political power of its own accord. Still, it’s significant that this court is clearly unwilling to obstruct a social and political advance toward equality.

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