How Many States Must Permit Gay Marriage Before We Take It to SCOTUS?

VIEWPOINTS — “The bottom line is that even the moderate justices would be disinclined to require marriage equality today or even three years from now. By then, more states will have recognized same-sex marriages, but it is unlikely they will be anywhere close to a majority. Consider this parallel. In the mid-1950s, when 30 states still had laws barring people of different races from marrying, the liberal Warren Court refused to overturn this blatant race discrimination. The court did not act until 1967, when only 17 states retained such laws. So long as interracial marriage intensely divided the country, the Warren Court was not prepared to insist upon a norm of equality. Would the current moderates on the Roberts Court be any bolder? It’s hard to imagine.

“Perhaps Olson and Boies are hoping that the relatively liberal U.S. Court of Appeals for the 9th Circuit will uphold marriage equality and that the Supreme Court will then duck the case, allowing the appellate ruling to stand. It is not entirely clear, however, that the 9th Circuit itself will go along with such a strategy, because of the expected backlash. Any decision by that court would apply not only to California but also to culturally conservative Idaho and Montana. And even in California, after all, voters banned gay marriage when they passed Proposition 8 in November, the reason for the federal suit in the first place.” —William N. Eskridge Jr. and Darren Spedale arguing Ted Olson and David Boies should quit their federal challenge to Prop 8 [Slate]