SALT LAKE CITY -- Advocates on both sides of the gay marriage
debate predicted that the U.S. Supreme Court ruling in June that
overturned part of a federal ban on gay marriage would create a
pathway for states to act.
They were right.
In the six months since the decision, the number of states
allowing gay marriage has jumped from 12 to 18, a trend that started
before the high court ruling that's been reinforced since. Judges in
New Mexico, Ohio and -- most surprisingly -- conservative, Mormon-
heavy Utah all ruled in favor of same-sex marriage in just the past
week. Both Utah's case and another in Nevada will next be heard by
federal appeals courts, putting them on the path toward the high
court. Ohio's case, which recognized same-sex death certificates,
also will likely be appealed.
The series of court decisions has many asking: When will the
Supreme Court step in and settle the issue for good?
It may not be that simple.
The cases on the path to the Supreme Court now differ little from
a case justices refused to hear in June, at the same time they made
their landmark ruling on the federal law denying tax, health and
other benefits to legally married same-sex couples.
That case, from California, hinged on a constitutional amendment
defining marriage as between a man and a woman.
If the justices had acted, it would have struck down gay marriage
prohibitions across the country.
Instead, the justices passed, relying instead on a technical
legal argument to resolve the California case and clear the way for
same-sex marriage in the state, which resumed at the end of June.
That convinces some legal scholars that the high court won't take
up the issue again so soon. In a way, they've already passed the
buck to the states, some say, including language in their Defense of
Marriage Act ruling saying it relegates same-sex marriages to second-
class status, and "humiliates tens of thousands of children now
being raised by same-sex couples."
That language makes it clear state bans are ripe for challenge,
said Andrew Koppelman, a professor of law and political science at
Northwestern University. Language from both Justice Anthony
Kennedy's majority opinion and Justice Antonin Scalia's biting
dissent have appeared prominently in subsequent court challenges and
rulings, including in Utah and Ohio. A federal judge in Ohio ordered
officials to recognize gay marriages on death certificates. …