A Steady Path to Supreme Court as Gay Marriage Gains Momentum in States By ADAM LIPTAK WASHINGTON &m

A Steady Path to Supreme Court as Gay Marriage Gains Momentum in States

ByADAM LIPTAK

WASHINGTON — A sweeping decision on Thursday night struck down Virginia’s ban on same-sex marriage and continued a remarkable winning streak for gay rights advocates, putting new pressure on the Supreme Court to decide the momentous question it ducked last summer: whether there is a constitutional right to same-sex marriage.

Since June, when the Supreme Court ruled that same-sex couples are entitled to equal treatment in at least some settings, federal judges in Oklahoma, Utah and Virginia have struck down laws barring same-sex marriages. In state legislatures and state courts, too, supporters of same-sex marriage have been winning.

“The pace of change has perhaps outstripped the Supreme Court’s preferences, but the momentum is tremendous,” said Suzanne B. Goldberg, a law professor at Columbia.

Rapid changes in public opinion are also playing a part, said Andrew M. Koppelman, a law professor at Northwestern. “It is becoming increasingly clear to judges that if they rule against same-sex marriage their grandchildren will regard them as bigots,” he said.

Instriking down Virginia’s ban on same-sex marriage, Judge Arenda L. Wright Allen of Federal District Court in Norfolk relied heavily on the Supreme Court’s decision in June in United States v. Windsor, which ruled that the federal government must provide benefits to same-sex couples married in states that allow such unions.

The Windsor decision also figured prominently in recent rulings from federal judges striking down bans on same-sex marriage in OklahomaandUtah.

The three trial-court decisions vindicated a prediction from Justice Antonin Scalia, who dissented in Windsor. “By formally declaring anyone opposed to same-sex marriage an enemy of human decency,” he wrote, “the majority arms well every challenger to a state law restricting marriage to its traditional definition.”

He has so far turned out to be right, presumably to his bitter dismay.

In keeping with the pace of change, Judge Wright Allen’s decision was marked by haste. It was issued late in the evening, which was curious in light of the fact that it was stayed pending appeal. And its first paragraph, since corrected, initially attributed the phrase “all men are created equal” to the Constitution, though it is in the Declaration of Independence.

The decision chose just one of the plausible readings of Windsor, which contained doctrinal crosscurrents. Indeed, Judge Wright Allen quoted a long passage from Justice Anthony M. Kennedy’s majority opinion extolling the central role of states in defining marriage. That would seem to support allowing Virginia to decide whom it will let marry.

“Notwithstanding the wisdom usually residing within proper deference to state authorities regarding domestic relations,” Judge Wright Allen wrote, prompt action from the courts was required. “When core civil rights are at stake,” she said, “the judiciary must act.”

She drew on other parts of Justice Kennedy’s opinion, and she had plenty to work with. Treating same-sex marriages differently from others, he wrote, “demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship the state has sought to dignify.”

“And,” he added, “it humiliates tens of thousands of children now being raised by same-sex couples.”

Judge Wright Allen began her decision with a quotation from Mildred Loving, who successfully challenged Virginia’s ban on interracial marriage in the Supreme Court in Loving v. Virginia.

The Loving decision, which struck down such bans nationwide, is instructive in many ways, including in how to gauge the pace of change.

The Supreme Court issued the decision in 1967, which was quite late in the civil rights era. At the time, only 16 states still prohibited interracial unions.

Almost two decades had passed since the California Supreme Court struck down the state’s ban on interracial marriage in 1948.

In the meantime, the United States Supreme Court took sometimes unseemly pains, in an era when its jurisdiction was often nominally mandatory, to avoid ruling on the question.

If past were prologue, this might indicate that the Supreme Court will take its time before returning to the question of what the Constitution has to say about same-sex marriage, particularly now that the court’s jurisdiction is almost entirely discretionary.

After all, only 17 states and the District of Columbia allow such unions, not counting the recent decisions, all stayed, from Oklahoma, Utah and Virginia.

On the other hand, public opinion in 1967 was strongly against interracial marriage, while most polls show that a rapidly growing majority of Americans support same-sex marriage.

That transformation in public sentiment will not be ignored by the judiciary, Professor Koppelman said.

He added that the Supreme Court is likely to step in as soon as next year should any of the recent decisions be affirmed by a federal appeals court.

Professor Goldberg agreed that “pressure is building in society and building in the courts,” making it “likely but not inevitable that the Supreme Court will take a marriage case in the near future.”

Still, the justices are often wary of a backlash and might prefer to let the democratic process and lower courts work through contentious social issues before weighing in.

Justice Ruth Bader Ginsburg, a leading champion of women’s rights, has often said the Supreme Court should have issued a narrower decision in 1973 in Roe v. Wade rather than announcing a broad constitutional right to abortion nationwide. State legislatures, she has said, were making progress on the issue.

Justice Ginsburg’s historical account is contested, but there is reason to think that her caution played a role in the court’s failure in June to say in Hollingsworth v. Perry whether the Constitution requires states to let gay and lesbian couples marry.

The justices continue to mull the crucial question of when to weigh in when society is on the move.

Ina joint appearance last week, Justice Elena Kagan seemed to give Justice Ginsburg a nudge.

“She has been critical of certain cases, most notably Roe v. Wade, for having ruled too expansively and too quickly,” Justice Kagan said of Justice Ginsburg, who listened attentively. “But she has also recognized that when the time is right courts can play an important role in ratifying society’s progress.”