Gay rights groups treated the news as a historic accomplishment, proof that full marriage equality under the law could be as close as the next case to reach the Supreme Court. Scalia is worried they are right. “How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status,” he wrote.
But the immediate result of Wednesday’s decision will be more fighting, not a clear-cut path for victory for gay rights supporters. After all, gay marriage is still illegal in a majority of states. Until the Supreme Court decides to rule on a case that clearly tests whether those bans are permitted, the fight will take place in the states, one by one.
Gay marriage advocates have enjoyed a string of important victories in state politics recently, but bans on same-sex unions have a much better electoral track record overall. And despite Scalia’s concerns, the court had a chance, in its second case, to clarify the question of gay marriage for good. It stepped aside instead.
The case came out of California where U.S. District Judge Vaughn Walker ruled for the first time that the U.S. Constitution forbade a state from banning gay marriage. Voters in 2008 had approved Proposition 8, which changed the state constitution to ban gay marriage.
Former George W. Bush Administration solicitor general Theodore Olson and Boies joined together to challenge Prop 8 in federal court, a move that gay rights activists at the time thought was tremendously risky given the conservative makeup of the court and strong public disapproval of gay marriage at the time. But in a brilliant display of lawyering, Boies and Olson presented witness after witness that argued the ban on gay marriage was motivated mainly by animus toward gays and unfounded notions that children do better when raised by straight parents. They won a clear victory at trial. When newly elected Gov. Jerry Brown and other state officials refused to appeal the decision, the group of activists that had successfully launched the Prop 8 ballot initiative sought permission to appeal in their place.
On Wednesday, Chief Justice John Roberts wrote for a 5-4 majority, ruling that the Prop 8 proponents lacked standing to sue and dismissed the case on that technicality. That left in tact the lower court’s decision, clearing the way for California couples to marry, probably within a month.
But in a sign of things to come, the proponents vowed Wednesday to fight technicality with technicality, and seek to delay gay marriage in areas where local officials may be willing to risk legal challenge by denying marriage licenses to same-sex couples.
Brown and other officials, for their part, vowed to enforce Walker’s decision. And elsewhere, the American Civil Liberties Union announced a new drive to win Republican political support for expanding gay marriage rights in states where it is currently illegal.
A day after the biggest gay rights legal decisions in a decade, all that’s clear is gay marriage supporters won a battle on Wednesday. There will be a lot more fighting, in the courts and in the statehouses, before the war is over. “In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated,” Scalia wrote. “Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better.”