In a stunning reversal, the US Supreme Court allowed by omission yesterday for same-sex marriage to go forward in five states, and cleared the way for marriage equality in a further six. The way they did this was by refusing to hear an appeal on the decision by a few federal appeals courts to strike down local laws banning same-sex marriage.
While Texas indeed currently has a stayed federal court order against its so-called defense of marriage amendment, it was not covered by the Supreme Court's actions (or inactions) Monday. In fact, it will probably be the Texas case that will cause the justices to finally examine this question of nationwide same-sex marriage once and for all. With the Texas case currently tied up in the 5th Circuit Court of Appeals, a fiercely conservative court, there is a good chance that it will affirm the bans. This will cause a split in appellate decisions, which hitherto have been unanimous in striking down the bans. A split would almost certainly necessitate the Supreme Court getting involved.
The slow and incremental steps that the court is taking appear to be in the same spirit of gradual change that Justice Ruth Bader Ginsburg has long advocated. A critic of the abruptness of the court's decision in Roe v. Wade, Ginsburg has derided sudden nationwide mandates, calling them a catalyst for polarizing gridlock. Instead, she has argued for public opinion to change and then for the court to take baby steps. Chief Justice John Roberts, long obsessive over the court's public image, could have likely come to a similar conclusion.
,And with public opinion rapidly changing on this issue, the court took yet another baby step toward equality on the topic Monday. Indeed, in one of fastest reversals in political history, the percentage of Americans supportive of same-sex marriage has nearly doubled from about 30% in 2004 to about 60% today. It's a good step, but there is still much left to do.
Horwitz is an associate editor.