WASHINGTON When the U.S. Supreme Court declined on Wednesday to rule on whether gay men and lesbians have a fundamental right to marry, it delivered an implicit message to those seeking such a right: Don't hurry back.
All nine of the justices, with their votes and rhetoric in a pair of cases, signalled they either would never be willing, or are not ready yet, to cut off the unfolding state-by-state legislative debate on gay marriage. The five-justice alliance that came together in one case to extend federal benefits to same-sex couples splintered in the other case to avoid facing a larger test on the constitutional right.
The dual actions revealed that even the liberal justices want to wait a little longer - perhaps for more state action. Thirteen of the 50 states allow gay marriage. More than 30 states do not recognize such unions. In the past, justices have demonstrated that they do not want to be too far out ahead of the country.
In some ways the line-up on the first case, which struck down a 1996 law that denied federal benefits to married gay couples that were available to opposite-sex couples, was predictable. Justice Anthony Kennedy wrote the opinion. Kennedy had previously taken the lead in two cases, decided in 1996 and 2003, that favoured gay rights. On Wednesday, he was joined by the court's four liberals.
Gay men and lesbians should not be relegated to a second-class status, Justice Kennedy declared as he announced the opinion in United States v. Windsor. Grounding the decision in principles of due process and equal protection, he said Congress cannot treat legally married gay couples differently. He said the disputed provision of the federal Defence of Marriage Act "tells those couples and all the world, that their otherwise valid marriages are unworthy of federal recognition."
Just as he had in the prior two cases, conservative Justice Antonin Scalia issued a blistering dissent. On Wednesday, in a voice dripping with disdain, Scalia mocked Kennedy for saying federal law "degraded" gay couples and "humiliated" their children. Scalia spoke for 13 minutes, a full 5 minutes longer than Kennedy, while Kennedy looked straight out at spectators, stone-faced, rocking gently in his black leather chair.
More telling signals about the fate of a national right to gay marriage came in another decision announced by the court. Chief Justice John Roberts said the court would not intervene in a controversy over California's Proposition 8, which lower courts earlier invalidated. Challengers of that ban on same-sex marriage had hoped the justices would use the case to declare a constitutional right to marriage for gay men and lesbians.
By a 5-4 vote, the majority sidestepped the constitutional question and tossed out the case on procedural grounds. The issue on the table was whether the supporters of the Proposition 8 ballot initiative had legal "standing" to defend it in court once the ban was invalidated and state officials declined to appeal.
Roberts said no. He was joined by Scalia and three of the liberal justices who had just voted to extend federal benefits to gay married couples: Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan.
Kennedy, meanwhile, countered that Proposition 8 supporters should have legal standing, but did not address whether they should prevail. Underscoring the unusual ideological alliances forged, Kennedy was joined in his opinion by conservatives Samuel Alito and Clarence Thomas and liberal Sonia Sotomayor.
ONLY SO FAR
The split on a procedural issue may have exposed concerns among the justices as to whether conservatives or liberals would prevail if the court had to decide the fundamental gay-marriage dilemma.
Harvard law professor Richard Fallon said the shifting divisions showed that the five-justice coalition favouring gay rights was willing to go only so far at this point.
"Although a majority thought it was important to resolve the DOMA issue," he said, "a majority did not believe it was not similarly desirable to resolve the larger equal protection issue" posed by laws against gay marriage.
While centrist conservative Kennedy is often the swing vote on politically charged social issues, in this case one of the liberals may have been torn. Ginsburg, for example, has criticized the court for its controversial 1973 Roe v. Wade decision, declaring a right to abortion, just as states were beginning to consider the matter. It is impossible to know what the liberal justices were thinking since none wrote a separate opinion.
Another dynamic that could give proponents of gay marriage pause and hearten opponents: The majority favouring gay rights is narrower than it was in earlier years. The 1996 and 2003 decisions were by 6-3 majorities. One of those six supporters, Justice Sandra Day O'Connor, retired in 2006 and was succeeded by Alito, who on Wednesday was squarely in the camp against judicial action on gay marriage. He said the choice should be left to the states.
Lawyer Theodore Boutrous, on the legal team that fought Proposition 8 and seeks a national right to gay marriage, said the group was looking for a test case in one of the nearly 30 states that bans gay marriage. He said that might take a few years and predicted the court would be readier to change the national landscape the next time around.
Said Boutrous: "The court is taking it one step at a time."