The fear among gay marriage proponents is that the court will refuse to declare that states can no longer define marriage as the union of a man and a woman, because to do so might provoke a backlash in public opinion and undermine acceptance of its authority.
A high court loss for gay marriage advocates would prevent same-sex marriages in the nation’s largest state. It would not affect the District of Columbia and the nine states — Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont and Washington — where gay couples can or soon will be able to marry.
But it could push back the day that many in the gay rights movement, looking at strong support for gay marriage among younger Americans, see as inevitable: the Supreme Court’s endorsement of full marriage equality nationwide.
Commenting after the court’s action, Bonauto said she believes the court can uphold an appeals court ruling that struck down Proposition 8 in a way that applies to California only and “leave to a later day questions about broader bans on committed same-sex couples marrying.”
Opponents of gay marriage look to another court case, Roe v. Wade, that they say should serve as a cautionary tale. In 1973, the court voted 7-2 to declare that the Constitution protects a woman’s right to an abortion.
“Should the Supreme Court decide to overturn the marriage laws of 41 states, the ruling would become even more divisive than the court’s infamous Roe v. Wade decision,” said Tony Perkins, president of the Family Research Council. “Marriage, unlike abortion laws in the 1970s, has been incorporated into the state constitutions of 30 states. Voters in these states will not accept an activist court redefining our most fundamental social institution.”
To a degree, Perkins and Bonauto get some support from one of the nine people with a say in the matter, Justice Ruth Bader Ginsburg.
In February, Ginsburg questioned the timing of the abortion decision and suggested it may have contributed to the ongoing bitter debate about abortion.
“It’s not that the judgment was wrong, but it moved too far too fast,” Ginsburg said at Columbia University.
At the time of Roe v. Wade, abortion was legal on request in four states, allowed under limited circumstances in about 16 others, and outlawed under nearly all circumstances in the other states, including Texas, where the Roe case originated.
The court could have put off dealing with abortion while the state-by-state process evolved, she said. Or her predecessors could have struck down just the Texas law, which allowed abortions only to save a mother’s life, without declaring a right to privacy that legalized the procedure nationwide, Ginsburg said.
“The court made a decision that made every abortion law in the country invalid, even the most liberal,” Ginsburg said. “We’ll never know whether I’m right or wrong … things might have turned out differently if the court had been more restrained.”