Now legal in 36 states, Supreme Court to take another look at same-sex marriage

J. Scott Applewhite (AP)

J. Scott Applewhite (AP)

J. Scott Applewhite (AP)

J. Scott Applewhite (AP)

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.

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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 remaining 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.

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