WASHINGTON — The Supreme Court has quietly engineered a dramatic increase in the number of states that allow gay and lesbian couples to wed. That increase also has raised the chances the justices soon will settle the legal debate.
Some justices expressed reluctance about deciding the issue when more than half the country prohibited same-sex unions. With Florida joining in this week, 36 states allow them, nearly twice as many as just three months ago.
The growth hasn’t come from an outpouring of public support expressed in voting booths or state legislatures, but from the high court’s surprising refusal last October to review lower court rulings in favor of same-sex marriages or to block them from taking effect.
The justices now face a situation in which just 14 states prohibit such unions, a number that may give comfort to a court that does not like to be too far ahead of the country. Three earlier seminal rulings that outlawed state-backed discrimination — in education, on interracial marriage and in criminal prohibitions against gay sex — were issued when a similar number of states still had the discriminatory laws on their books.
“There’s no question that they knew what they were doing in October. They knew the implications of what they were doing,” said Roberta Kaplan, the lawyer who represented New Yorker Edie Windsor in her successful Supreme Court challenge in 2013 to part of the federal anti-gay marriage law, the Defense of Marriage Act.
The Supreme Court again is considering whether to hear a gay marriage case, and another factor has raised the likelihood the justices will do so. In November, the federal court of appeals based in Cincinnati became the first, and so far only, appellate court to uphold state bans on same-sex marriage. Plaintiffs from Kentucky, Michigan, Ohio and Tennessee are asking to court to reverse that decision.
The justices are meeting in private on Friday to consider adding new cases to their late April argument session, and a decision could be announced soon. Meanwhile, a panel of federal appellate judges in New Orleans is hearing arguments Friday on anti-gay marriage laws in Louisiana, Mississippi and Texas.
The other states that continue to enforce same-sex marriage bans are Alabama, Arkansas, Georgia, Missouri (except in Kansas City and St. Louis), Nebraska, North Dakota and South Dakota.
Justice Antonin Scalia forecast what would happen when he dissented from the court’s decision in the Windsor case in June 2013.
Justice Anthony Kennedy said in his majority opinion that the decision was not intended to resolve the question of whether states could prevent same-sex couples from marrying. But Scalia predicted that courts soon would apply Kennedy’s words to strike down state bans on gay marriage.
“How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status,” Scalia said.
It did not take long to for him to be proven right. The first ruling after the Windsor decision came six months later in Utah, followed by a deluge in every region of the country.
Opponents of same-sex marriage have fought a mostly losing battle to get judges to defer to voters and elected lawmakers who enacted laws and constitutional amendments in many states defining marriage as between a man and a woman.
John Bursch, who represented Utah in its unsuccessful bid to get the high court to hear that state’s appeal, said the proponents of same-sex marriage have an easy argument to make to the justices.
“Thirty-six states have this now, so you don’t have to wait anymore,” said Bursch, who also served as Michigan’s solicitor general. “The simple response to that is, ‘Hey, that was the courts.'”
Kaplan noted the irony of federal courts leading the way in bringing same-sex marriage to large parts of the country. “For so long we were so scared of going into federal court,” where state restrictions were usually upheld, she said.
The court’s earlier major discrimination cases suggest that the justices may now be more comfortable setting a nationwide rule for gay marriage.
In 2003, 13 states still had laws against sodomy when the court ruled that states have no right to intrude on the private, personal conduct of people, regardless of sexual orientation. Interracial marriage still was illegal in 16 states in 1967, before the high court outlawed race-based state marriage bans. And in 1954, when the court issued its landmark decision in Brown v. Board of Education, 17 states had formally segregated school systems.
MARK SHERMAN, Associated Press