The day some marriage-equality advocates have been waiting for, and some still fear, is finally here. On Friday the Supreme Court accepted a petition to rule on the constitutionality of gay-marriage bans in Kentucky, Missouri, Ohio and Tennessee. The Court repeatedly declined to take up the issue in the last year, but a split among the appellate courts—those of the Fourth, Seventh, Ninth, and Tenth Circuits have previously ruled gay-marriage bans unconstitutional, but in November the Sixth Circuit broke from the pack—was widely viewed as having forced the justices’ hand.
“The Supreme Court’s decision today begins what we hope will be the last chapter in our campaign to win marriage nationwide—and it’s time,” said the president of marriage-equality group Freedom to Marry, Evan Wolfson, widely considered the father of the gay-marriage movement. “America is ready for the freedom to marry.”
While the justices’ decision to take the case invites speculation about how the Court will rule, it should come as little surprise. A year and a half ago, the Supreme Court set off an avalanche of litigation with its ruling in United States v. Windsor, in which the justices struck down Section 3 of the Defense of Marriage Act, which prohibited the federal government from recognizing same-sex marriages performed in the states. While Windsor did not explicitly address the constitutionality of such unions, in eliminating the ban Justice Anthony Kennedy wrote that it was intended “to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.” Since then, dozens of courts have overturned state-level bans on gay marriage, reasoning that Kennedy’s language makes such laws constitutionally suspect.
But their justification for striking down such laws has varied widely. If the sentiment behind Kennedy’s ruling is clear, his legal reasoning was vague; he did not address whether gay couples had a “fundamental right” to marry or whether gays and lesbians constituted a class of people in need of judicial protection from discrimination. The Court also sought, in however perfunctory a way, to limit the scope of its decision; the majority opinion made clear that the Court was not deciding the same-sex marriage issue.
But Justice Antonin Scalia, the Court’s conservative firebrand, saw through the majority’s half-hearted assurances. “The real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by ‘bare…desire to harm’ couples in same-sex marriages,” Scalia wrote. “How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status?”
As evidenced by the string of victories for gay-marriage advocates that followed, pretty easy indeed.
But Kennedy’s vagueness also left room for some conservative justices, and the right-leaning Sixth Circuit, to reason that the Court’s 1972 ruling in Baker v. Nelson—in which the justices upheld a Minnesota law limiting marriage to heterosexual couples—was still the controlling precedent, thus setting the issue up for a rematch down the line. In the opinion of some legal analysts, this was Kennedy’s plan all along.