Marcus: U.S. makes amazing transformation on gay marriage

Rapid change

On the issue of same-sex marriage, evolution has occurred at warp speed. In the next presidential cycle, it is unimaginable that a Democratic candidate would oppose same-sex marriage, and unlikely that the Republican nominee would make an issue of it. Now, the fallback Republican position against marriage equality is not to clamor for a constitutional amendment to protect against the scourge of same-sex marriage, a move George W. Bush supported. Rather, it’s to argue that the matter ought to be left to individual states.

And there wasn’t even much of that — at least not from elected officials — when the court declined Monday to take up any of the seven same-sex marriage cases before it. So, what to make of the court’s decision not to decide?

First, that it is telling. It takes four votes to hear a case. If a majority of the justices thought the lower courts were misinterpreting last year’s ruling on the Defense of Marriage Act when they struck down state bans on same-sex marriage, the court could have easily intervened. It didn’t.

Tony Perkins of the conservative Family Research Council argued that “by refusing to get involved in a mess it helped create, the justices are leaving our laws vulnerable to rogue judges on the lower courts.” But the three federal appeals courts that have struck down state bans on same-sex marriage are not judges gone rogue — they are, as Scalia predicted, judges dutifully applying the inexorable logic of binding precedent. If the four conservative justices in the minority in last year’s ruling thought they had a fifth vote on their side, they could have voted to take up the issue.

Second, that it is a temporary, and probably healthy, stopping point on the way to declaring a fundamental right for gay and lesbian couples to marry.

The delay, said Evan Wolfson of Freedom to Marry, “prolongs the patchwork of state-to-state discrimination and the harms and indignity that the denial of marriage still inflicts on too many couples in too many places.”

Easy for me, perhaps, to counsel patience. I’m not a gay woman living in Alabama, where only court intervention will protect my right to marry. But a Supreme Court pronouncement is coming. A federal appeals court will rule the other way, creating a split for the justices to resolve. Or even without a circuit split, the Supreme Court will conclude it is time to weigh in on an undoubtedly important federal question.

For the court to intervene then would disrupt not only settled law but settled marriages. That’s not going to happen.