Actually, The Court Just Undercut Gay Marriage’s Inevitability

David Benkof Contributor
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Yesterday, the Supreme Court announced it will not review rulings from several lower courts that had found a constitutional right to same-sex marriage. The news has been widely interpreted as an auspicious signal for gay marriage – if not the nail in the coffin for man-woman marriage in America.

For example, a headline in The Atlantic declared, “The Same-Sex Marriage Fight is Over.” Washington Post columnist Eugene Robinson described the news as “surrender to the inevitable” and “a tipping point.” And Adam Liptak of The New York Times wrote that it “may indicate a point of no return for the Supreme Court.”

But the reality may be the opposite. The surprise judicial (in)action on this year’s “First Monday in October” means there will probably be no term-ending decision implementing gay marriage nationwide – a step most Court watchers had been expecting. In fact, the next big case asking whether there is a constitutional right to same-sex marriage could come before a far more conservative court – which may rule that no such right exists.

I interviewed Law Professor Andrew Koppelman of Northwestern, one of the nation’s leading experts on sexual orientation and the Constitution. He confirmed that a future decision disagreeing with lower court declarations of gay marriage rights in the Constitution would void those other rulings. Dr. Koppelman indicated that previous state laws and amendments in places like Wisconsin and Utah could then become law again.

At that point, only man-woman marriage would be recognized in those states unless legislators and voters decide to reinstate gay marriage through new state constitutional amendments and laws. With increasing nationwide comfort with gay marriage – and with Republican holdouts being seen as stubborn fuddy-duddies – some of those states would surely bring back “marriage equality.” But by forestalling a June ruling that same-sex marriage is constitutionally guaranteed, yesterday’s news should be a relief for those of us who advocate man-woman marriage alone.

Dr. Koppelman pointed out that scant precedent exists for nullifying marriages already recognized, but that a conservative nationwide decision on marriage might halt future same-sex marriages in various states.

Some of the commentary about yesterday’s marriage news demonstrates ignorance of how our judicial system works. For example, Amy Davidson of The New Yorker wrote, “The Court’s move means that [lower court] victories are final and definitive.” Well, no. Inaction by the Supreme Court is just that – inaction. No interpretation of the Constitution is “final and definitive” until the Big Nine say it is, and we don’t know what the composition of the Court will be the next time the question arises.

All of this presupposes a Court that can turn sharply rightward, and I believe it could. Under the scenario I speculated about in the Daily Caller back in January, a Republican Senate elected next month could block any Obama Supreme Court nominee. Then, if there’s a Republican president and Senate in 2016, they could theoretically appoint several new conservative justices. Right now, there are only two young liberals on the court – Sotomayor and Kagan. So a 5-4, 6-3, or even 7-2 traditional-marriage decision by the end of the decade is not out of the question.

One last thought: Supreme Court rules allow a case to be placed on the docket by a vote of only four of the nine justices. Many observers have wondered why the four justices who don’t support gay marriage (Roberts, Scalia, Thomas, and Alito) didn’t vote yes, in hopes of overturning lower court opinions that there’s a constitutional right to same-sex marriage.

But the conservative bloc may be wilier than people think. It may have realized that the only hope for preserving traditional marriage in at least part of the country was to avoid a sweeping decision this term and wait for more justices like them.

So I don’t join my fellow traditionalists in mourning yesterday’s announcement. Rather, I think it’s a ray of hope after several months of bad news for the man-woman understanding of marriage.

David Benkof is a freelance writer living in St. Louis and a frequent contributor to the Daily Caller. Follow him on Facebook or E-mail him at DavidBenkof@gmail.com.