Courting a ‘Lose-Lose’ Proposition for Conservatives on Gay Marriage

I wonder how Supreme Court Justice Antonin Scalia feels to be wrong. A year ago, dissenting in U.S. v. Windsor, which overturned the Defense of Marriage Act (DOMA), Scalia criticized his brethren for “cheat[ing] both sides, robbing the winners of an honest victory and the losers the peace that comes from a fair defeat.” In Windsor, you may recall, the U.S. Supreme Court declared DOMA unconstitutional but refused to legalize gay marriage across the board. Scalia forecast that the court had set up a piecemeal process in which prohibitions on gay marriage would be litigated state-by-state as challengers filed (and likely won) suits in the lower courts rather than relying on the Supreme Court to decide once and for all whether gay marriage was a constitutional right.

For a while, it looked like Scalia would be right. In the year following Windsor, challengers secured victories in multiple state and federal courts declaring that prohibitions against same-sex marriage are unconstitutional. All the while, the Supreme Court remained silent. Returning from its annual recess in October, the justices decided not to hear appeals from three same-sex marriage cases, effectively permitting gay marriage to become law in a majority of states. In a rare glimpse of the justices’ thinking, Justice Ruth Bader Ginsburg was quoted as saying there was no immediate need for the Supreme Court to take up additional gay marriage cases. So long as the lower courts continued to invalidate restrictions on same-sex marriage, a tidal wave of constitutional change could continue to sweep the country without the justices becoming involved.

That strategy worked well until the 6th Circuit Court of Appeals muddied the waters in early November with a 2-1 decision refusing to overturn restrictions on gay marriage in four states. In an argument often heard from conservative critics, the two Republican-appointed judges claimed that constitutional and social change should come from voter “initiatives and legislation,” not court decisions. You could almost hear the cheering across town from the Family Research Council and the Heritage Foundation: Voters, not unelected judges, would get a final say about marriage laws. If the good people of Ohio or Kentucky didn’t want to permit gays and lesbians to marry a decade ago when adopting legislation, the 6th Circuit wasn’t about to contradict their judgment.