For supporters of same-sex marriage, last week’s U.S. Supreme Court relative inaction was good news, wasn’t it?
The high court let stand rulings from three federal appeals courts that struck down bans on gay marriage in Indiana, Oklahoma, Utah, Virginia and Wisconsin. Those three courts have jurisdiction over six other states that ban gay marriage — Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming — and logically would follow precedent to do away with their bans, too.
So for Americans who believe in fair and equal treatment under the law, as this newspaper does, how is this not positive? Same-sex marriage could be legal in as many as 30 states and the District of Columbia — and that number could swell to 35, depending on how the 9th Circuit Court of Appeals in San Francisco rules.
Doesn’t that make it the law of the land? Unfortunately, it depends where on the land you reside. The Supreme Court had a chance with a single, definitive ruling to bring consistency and legal clarity to what the mishmash of state laws. Instead, it abdicated its responsibility.
Consider Texas.
Our state’s ban dates to a 2005 amendment to the state Constitution. It was challenged by a Texas couple who wanted to marry and by another who married in Massachusetts and wanted their union recognized in Texas. U.S. District Judge Orlando Garcia in San Antonio struck down the Texas law as unconstitutionally depriving some Americans of equal protection and due process. Yet he stayed his ruling to allow for the state’s appeal, which is working its way through the 5th Circuit Court of Appeals in New Orleans.
Even if one celebrates the Supreme Court’s action by inaction, the practical result for a state like Texas is prolonged confusion and litigation, when the court could have fulfilled its constitutional duty as our national arbiter. Still unresolved is how a gay couple’s legal marriage in one state can be ignored in a different state.
Gay-marriage opponents in Texas would argue that the 2005 constitutional amendment passed with 76 percent of the vote, yet there is much evidence that minds are changing every day. A Texas Tribune poll last year showed that two-thirds of Texans favored allowing civil unions or gay marriage; only 26 percent opposed both.
This newspaper argued against Texas’ amendment, even as we respect religious traditions opposed to such unions and stipulate that the First Amendment protects places of worship from being compelled to conduct same-sex marriages.
This same Supreme Court recognized equality under the law in striking down the Defense of Marriage Act last year, which makes its passivity all the more perplexing. We can only hope the court seizes its next opportunity to lift same-sex marriage laws out of the gray twilight and presents an undeniable victory for a fundamental ideal.
