WASHINGTON — The fastest and surest path to marriage for same-sex couples in some parts of the United States would be for the Supreme Court to surprise everyone and decline to get involved in the issue right now.
A decision by the justices to reject calls from all quarters to take up same-sex marriage would allow gay and lesbian couples in Indiana, Oklahoma, Utah, Virginia and Wisconsin to begin getting married almost immediately. Rulings in their favor have been put on hold while the Supreme Court considers their cases.
And if the high court leaves those rulings in place, same-sex couples almost certainly would win the right to marry in six other states in short order because those states — Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming — would be bound by the same appeals court decisions.
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That would bring to 30 the number of states where same-sex marriage is legal, plus the District of Columbia.
Yet almost everyone who follows the issue for a living or otherwise thinks the Supreme Court will step in and decide gay marriage cases this term. The cases were on the agenda when the justices met in private Monday to decide new cases to hear this term. The court could announce a decision as early as this week.
If the court were to reject the appeals, it would leave untouched the laws in the other 20 states that still enforce same-sex marriage bans.
“Winning in some places is better than not,” said Evan Wolfson, founder and president of Freedom to Marry. “But it still falls far short of the full protection that Americans deserve.”
Both sides in the dispute also say the justices have an obligation to settle an issue of such national importance, not abdicate that responsibility to lower court judges. Opting out of hearing the cases would leave those lower court rulings in place.
Justice Ruth Bader Ginsburg appeared to be addressing that concern when she said in July that the court would not duck the issue, as it did for years with bans on interracial marriage.
Yet more recently, at a forum in Minnesota, Ginsburg suggested the court might refrain from taking any action unless an appeals court were to uphold a same-sex marriage ban, which would create a split among appeals courts that typically triggers Supreme Court review.
Two other appeals courts, in Cincinnati and San Francisco, could issue decisions any time in same-sex marriage cases. Judges in the Cincinnati-based 6th Circuit who are weighing pro-gay marriage rulings in Kentucky, Michigan, Ohio and Tennessee, appeared more likely to rule in favor of state bans than did the 9th Circuit judges in San Francisco who are considering Idaho and Nevada restrictions on marriage.
If it doesn’t take one of the cases immediately, the court could still set them for argument in time for a decision in June 2015. It takes just four of the nine justices to vote to hear a case, but it takes a majority of at least five for an eventual ruling.
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