THE SEA CHANGE by default that took place on the U.S. Supreme Court’s annual official first day of business marked another turning point in the nation’s slow acceptance of marriage equality. The first Monday on October wasn’t even over and the most judicially activist Supreme Court in years had made history by doing nothing at all.
With its refusal to hear appeals from a quintet of states that challenged lower court rulings legalizing same-sex marriage — Indiana, Utah, Oklahoma, Virginia and Wisconsin — the high court resisted its own reliably conservative tilt on social issues, opening the door for the most sweeping and seismic shift in civil rights since the era of the civil rights movement.
The Supremes’ no-ruling ruling also paved the way for legalization in half a dozen other states under the same lower courts’ jurisdiction. The Associated Press reported Monday that residents of Colorado, Wyoming, West Virginia, North Carolina and South Carolina “should be able to get married in short order. Those states would be bound by the same appellate rulings that were put on hold pending the Supreme Court's review.”
◊ ◊ ◊
But the raw numbers of population are compelling. Sam Stein and Amanda Terkel of The Huffington Post reported Monday that: “The total population of those states, based on 2013 estimates from the Census Bureau, is about 190 million. Just over 60 percent of the U.S. population now lives in a state where marriage equality soon will be legal.
“Prior to Monday, that total was just under 44 percent -- if you discounted states where same-sex marriage was legalized but there were still court challenges. In all, the Supreme Court's decision on Monday set the path for an additional 51,579,771 people to live in states with concrete same-sex marriage rights.”
Richard Socarides, a gay-rights advocate and former adviser to President Clinton, told Politico that’s Monday’s news “is a terrific result, for now. It’s a little bit incremental, but I think it’s a fantastic result and we should celebrate today.”
◊ ◊ ◊
THE COURT’S consistently liberal wing has taken a wait-and-see approach, apparently content to watch how the state-by-state expansion of same-sex marriage plays out organically in the real world.
“The more liberal justices have been reluctant to press this issue to an up-or-down vote until more of the country experiences gay marriage,” Walter E. Dellinger III, acting United States solicitor general in the Clinton administration, told The New York Times. “Once a substantial part of the country has experienced gay marriage, then the court will be more willing to finish the job.”
And three weeks ago, at a lecture at the University of Minnesota Law School, Justice Ruth Bader Ginsburg warned that “there will be some urgency” for the court to act if the 6th Circuit breaks with the trend toward same-sex marriage accelerated on Monday. Otherwise, she said, there would be “no need for us to rush.”
◊ ◊ ◊
Lee’s statement, a weak retrenchment to conservative values, included a proposal that would make the issue of marriage equality subject to a hodgepodge of state laws. “Nothing in the Constitution forbids a state from retaining the traditional definition of marriage as a union between a man and a woman,” he said. “Whether to change that definition is a decision best left to the people of each state — not to unelected, politically unaccountable judges.”
Kate Nocera of BuzzFeed reported Monday that Texas Sen. Ted Cruz planned to introduce an equally improbable constitutional amendment “to prevent the federal government or the courts from attacking or striking down state marriage laws.”