The time has finally come: The Supreme Court has agreed to take on same-sex marriage, and it’s likely the case that we’ve all been waiting for. So who do activists have to thank? The court that voted against it.

The ironic path that got us here

Way back in early October of last year, SCOTUS denied certioraris from three different circuits to tackle gay marriage, stating that there had been no inconsistencies among the four circuits who had considered the issue. At that point, every federal appellate court that had considered the issue had ruled same-sex marriage bans unconstitutional.

Photo Credit: kelseybhughes cc
Photo Credit: kelseybhughes cc

Until a month later, when the Sixth Circuit found that there were no federal rights to same-sex marriage, and upheld same-sex marriage bans in four states. In his majority decision, Judge Jeffrey Sutton wrote at length about the issue being left up to the voters and preaching judicial restraint. The irony of which, as Steve Delchin of Squire Patton Blogs said on LXBN TV just after the decision came down, is that the decision would then be handed to the Supreme Court to tackle:

We have something today that we didn’t have yesterday, and that’s a circuit split–and a stark one, for that matter. The Sixth Circuit’s gay marriage decision last Thursday created a direct conflict with decisions on the 4th, the 7th, the 9th, and 10th Circuit decisions on the issue. And we didn’t have this split in October when the Supreme Court denied requests to take up the gay marriage issues.

A lot of people were surprised the Supreme Court stayed its hand last month but I didn’t find it surprising. I think the Court was waiting to see if a circuit split would emerge–and now we have it.

…Let me leave you with the ultimate irony: consider that Judge Sutton’s opinion is the ultimate defense on judicial restraint. But his opinion likely might be the catalyst that not only spurs the Supreme Court to accepting gay marriage, but also a judicially active opinion that creates new constitutional rights.

It’s an issue that the Court has so far been able to sidestep. Its previous decision regarding gay marriage in U.S. vs. Windsor, where it found that the federal government must extend all the benefits and privileges of marriage to same-sex couples, didn’t answer the underlying question of whether states are required to recognize and formalize same-sex marriage. Whereas this case will. It will discuss two main–and critical–points to the marriage equality movement: Does the Fourteenth Amendment require a state to license a same-sex marriage? And does the same amendment require a state to recognize a legally licensed, out-of-state same-sex marriage?

How long has this been in the works?

It seems likely that this case is not only the case that many members of the public have been waiting for, but the Supreme Court judges as well. And not just because two of the judges have presided over a same-sex marriage.

As Chris Geinder writes for Buzzfeed, SCOTUS has been playing a key role in the creation of the marriage equality landscape that now exists, including securing same-sex marriage in 17 states over the past couple months, making it unlikely that it’ll vote against it:

Since the Supreme Court struck down the Defense of Marriage Act’s ban on federal marriage recognition in 2013, the nation’s lower courts have created significant momentum toward this moment.

But it is the Supreme Court’s actions over the past 15 weeks, and the broad set of cases the court agreed on Friday to hear this spring, that makes the coming ruling practically preordained.

By issuing several orders in recent months allowing for more and more same-sex couples to be marrying in more and more states, the Supreme Court has made nationwide marriage equality a far less radical decision. It also has made it so that a decision upholding state marriage bans as constitutional would cause significant, difficult problems.

Since SCOTUS’ Windsor decision, more than 40 state and Federal courts have struck down state bans on same-sex marriage. Whereas two months ago a decision would’ve changed same-sex marriage status in 30 states, now, thanks to a court that was looking to uphold a marriage ban, SCOTUS may have positioned themselves to change legislation in just a few states.

Then what?

This decision could effectively legalize gay marriage, but this decision will cause bigger waves than that. Sam Schwartz-Fenwick, Kylie Byron and Amanda Sonneborn write in a blog post for Seyfarth Shaw on one way the decision could change employment law:

A ruling striking down marriage bans would also create a unique situation: all states would be required to permit same-sex marriage, but employers in the majority of states could still fire an employee for being gay or for being in a same-sex marriage.  Employees, emboldened by a ruling that legalizes same-sex marriage and frustrated by a Congress that has not expressly outlawed LGBT discrimination, are likely to increasingly use the Court to argue that LGBT discrimination is a form of sex discrimination, and is thus barred under Title VII.  The EEOC and the Obama administration already take this position.  Whether courts will be receptive to such a reading of the law, remains an open question.  However, language in a Supreme Court decision finding that LGBT individuals are a protected class under the Fourteenth Amendment, may give such an argument more persuasive effect.

No matter what, this will be a watershed moment for the marriage equality movement. Though, as the ACLU notes, it’s the (possibly) last stage for many it’s an affirmation of the new status quo:

With today’s SCOTUS announcement we are entering what we hope will be the last phase of a journey towards greater dignity and equality for lesbian, gay, and bisexual people that started decades ago and has accelerated at a truly astounding rate over the last year and a half. A win before the high court would be a watershed moment for the LGBT rights movement.

It’s clear from a few simple facts that the country is ready for the freedom to marry nationwide:

  • 36 states now allow same-sex couples to marry
  • 71 percent of the U.S. population lives in a freedom-to-marry state
  • 59 percent of Americans support marriage equality

Adding the remaining 29 percent of the population to the marriage column, while momentous for LGBT equality, would not impose sweeping new change on the country. If South Carolina, Utah, Florida, and Oklahoma are all marriage states, then surely Texas and South Dakota can handle it, too.

The Supreme Court will hear arguments this spring, with a decision expected in late June–hopefully just in time for Pride.