Supreme Court Non-Action Paves Way for Same-Sex Marriage

By Richard Nelson

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October 7, 2014

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Yesterday the Supreme Court declined to hear appeals from five state legislatures regarding same-sex marriage. The non-action lets stand judicial rulings that struck down voter-approved traditional definitions of marriage in those states. Thus, as of Tuesday, same-sex couples in 29 states can lawfully wed.

Both sides of the marriage debate expressed surprise at the Court's punting. Many expected one of the state cases to be a cataylst for a final decision on the constitutionality of gay marriage by the high court. That decision now appears unlikely for a good while. Nevertheless, as the New York Times points out, the non-action is a "tacit victory" for supporters of gay marriage, who can rest easy on the current trend of judicial overthrowing of traditional marriage.

A few points of perspective on this development:

1) Ever since the Court ruled against federal laws banning same-sex marriage last year, the anticipation has been that state laws would be challenged and also overthrown. As of today, state laws defining traditional marriage have neither the support of the Court nor its banishment. Given the belief that the Court's natural progression would be to strike down state laws, this is a sort of partial victory for traditional marriage proponents. Any traditional marriage laws that are upheld by appellate courts–and this has happened recently–would stand. Some laws might well be preserved.

2) Nevertheless, the writing is on the wall. Twenty-nine states have either legalized same-sex marriage or had traditional marriage laws overthrown on appeal. Christians and social conservatives should consider, if they don't already, same-sex marriage to be a national political reality. Practically, that might mean emphasizing the transcendent social significance of heterosexual marriage and families, and discontinuing arguments against gay marriage based on codified law.

3) As always, the correct response for believers and those invested in the historic understanding of marriage is neither panic nor apathy, but a graciously convictional appeal for traditional values. Russell Moore is instructive on this point:

Our model here ought to be the best aspects of the pro-life movement. Were there angry people who were anti-abortion who simply wanted the “wedge issue” in order to differentiate themselves from their opponents? I’m sure there were. But the primary thrust of the movement wasn’t about culture wars but cultural persuasion. That was by necessity, since real-life women were making real-life decisions about real-life babies. We don’t demonize them. We speak to them, with an alternative vision of what it means to love and to cherish every human life, in our families and in our laws

The end of the legal struggle for marriage is quickly approaching, but the struggle for eternal principles and ideals of human flourishing will never cease.

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Director, Commonwealth Policy Center