The Supreme Court on Friday agreed to decide whether all 50 states must allow gay and lesbian couples to marry. The court’s announcement made it likely that it would resolve this issue before its current term ends in June.
The justices ducked the issue in October, refusing to hear appeals from rulings allowing same-sex marriage in five states. That surprise action delivered a tacit victory for gay rights, immediately expanding the number of states with same-sex marriage to 24 from 19, along with the District of Columbia.
Largely as a consequence of the Supreme Court’s refusal in October, the number of states allowing same-sex marriage has since grown to 36, and more than 70 percent of Americans live in places where gay couples can marry.
In a statement Friday, Kansas Attorney General Derek Schmidt said: “For the second time, the U.S. Supreme Court has now agreed to hear argument on whether the United States Constitution prohibits states from enforcing laws that define marriage solely as the union of one man and one woman.
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“As I have said in the past, this is a legal question that can be settled with certainty only by a decision from our nation’s highest court. While it is too early to know how this will affect pending cases in Kansas, I am encouraged the Supreme Court has taken these cases, and I’m hopeful that this time the Court will provide a clear and timely decision that provides greater legal certainty.”
The pace of change on same-sex marriage, in both popular opinion and in the courts, has no parallel in the nation’s history.
Based on the court’s refusal in October and its last three major gay-rights rulings, most observers expect the court to establish a nationwide constitutional right to same-sex marriage. But the court also has a history of caution in this area.
It agreed once before to hear a constitutional challenge to a same-sex marriage ban, in 2012 in a case called Hollingsworth v. Perry that involved California’s Proposition 8. At the time, nine states and the District of Columbia allowed same-sex couples to marry.
When the court’s ruling arrived in June 2013, the justices ducked, with a majority saying that the case was not properly before them, and none of them expressing a view on the ultimate question of whether the Constitution requires states to allow same-sex marriage.
But a second decision the same day, in United States v. Windsor, provided the movement for same-sex marriage with what turned out to be a powerful tailwind. The decision struck down the part of the Defense of Marriage Act that barred federal benefits for same-sex couples married in states that allowed such unions.
The Windsor decision was based partly on federalism grounds, with Justice Anthony M. Kennedy’s majority opinion stressing that state decisions on how to treat marriages deserved respect. But lower courts focused on other parts of his opinion, ones that emphasized the dignity of gay relationships and the harm that families of gay couples suffered from bans on same-sex marriage.
In a remarkable and largely unbroken line of more than 40 decisions, state and federal courts relied on the Windsor decision to rule in favor of same-sex marriage.
The most important exception was a decision in November from a divided three-judge panel of the 6th U.S. Circuit Court of Appeals, in Cincinnati. Writing for the majority, Judge Jeffrey S. Sutton said that voters and legislators, not judges, should decide the issue.
That decision created a split among the federal appeals courts, a criterion that the Supreme Court often looks to in deciding whether to hear a case. That criterion had been missing in October.