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The Supreme Court’s decision yesterday to leave undisturbed cases striking down gay marriage bans in five states should be no surprise, though it does put the lie to the Court’s gay marriage decisions two terms ago.
In that case, Justice Anthony Kennedy’s opinion for himself and four liberal Justices (Ginsburg, Breyer, Sotomayor, and Kagan) spent most of its time praising federalism and admitting that marriage and family law remained under the control of the states. It then briefly — and without much explanation — found that the federal Defense of Marriage Act could only come from irrational hatred of gays. DOMA’s refusal to grant gay marriages the same federal benefits as heterosexual marriages, the Justices claimed, violated the principle that all laws must have some rational basis. Presumably the Court did not find all bans on gay marriage throughout the nation unconstitutional because of the unprecedented nature of the issue, which had not yet been fully discussed and ventilated in the lower courts.
The decision is no surprise because there is no split in the lower courts. Every federal appeals court to face the issue has found bans on gay marriage to be unconstitutional under the same logic as Windsor, which itself did not strike down any state marriage laws. The Justices are unlikely to take the case until a circuit court upholds a state ban on gay marriage. Why should the Court do so when it can rely on the lower court judges to do its work?
More importantly, the Court will not take these cases because a majority of the Justices agrees with the result. Even though Justice Kennedy’s opinion claimed not to prejudge the issue, its reasoning clearly struck down bans on gay marriage. If a federal ban on married gays receiving equal benefits violated the Constitution, then bans on those marriages themselves would have to violate the Constitution too. Advocates for the bans have had the time to accumulate empirical evidence that might suggest a legislature could have a rational basis to ban gay marriage, but they have failed to do so.
As someone who has supported gay marriage as state policy, but opposed its imposition by judicial decision, it seems to me that the legal fight is pointless. Like opponents of Roe v. Wade, gay marriage critics may succeed over the decades in narrowing Windsor, but I see little hope of overturning it. They should focus their efforts on changing public opinion, where abortion opponents have found their greatest success, though I think generational change will render gay marriage less and less controversial.