Is the Fight for Gay Marriage Effectively Over?

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Today same sex marriage is legal in 24 states - the number was only 19 at this hour yesterday - and as the rulings of the 4th, 7th and 10th Circuits begin to be applied in other states in their respective circuits, the number will rise to 30.  Another shoe will drop when the 9th Circuit likely also rules that same sex marriage bans are unconstitutional under the U.S. Constitution.  Then the number of marriage equality states will rise to 35.  That will leave 15 outlier states.  States that will suddenly find themselves at a huge disadvantage in therms of recruiting businesses and top talent to locate to bolster their economies.  And if the 6th Circuit strikes down the marriage bans before it, then the number of outlier states will be even smaller.  A piece in the Washington Post looks at the possibility that the battle for gay marriage may be effectively over and anti-gay states may find their bans going onto the trash heap of history with not much more than a whimper.  Here are article highlights:

Many observers of the court were stunned that the justices passed up reviewing lower-court decisions that overturned prohibitions on same-sex marriage in five states, delaying a decision that would answer the question for the nation.

Gay rights proponents took it as a sign that the court likes to move slowly when endorsing momentous societal change, that it feels no need to decide an issue before it must — and that the court’s move provides a clear signal for future challenges of voter-approved prohibitions on same-sex marriage.

“An action like this is profound,” said Mary Bonauto, a lawyer with Gay & Lesbian Advocates & Defenders (GLAD). “I expect that lower courts will get the message.”

Marriages could soon be available in six more states, for a total of 30. The Williams Institute at the University of California at Los Angeles estimates that when the rollout is complete, 65 percent of gay couples and a majority of all Americans will live in a place where same-sex unions are legal.

“There is something called the ‘normative power of the actual,’” said Walter Dellinger, a solicitor general in the Clinton White House. “People get used to an idea over time, and they come to think it’s right.” That is what will happen as more Americans see same-sex marriage as positive or, perhaps, simply inconsequential, Dellinger said.

[I]t is hard to think that the action carried no strategic importance. By putting holds on marriages in Virginia and Utah — lower courts had stayed the action in other states — the court had hinted that it did not want more same-sex unions to occur until it had a chance to weigh in.

There was enormous pressure on the court to take the case. The winners and losers in all five states had urged the court to get involved — a flock of high-profile lawyers had written the briefs asking for review. More than 30 states and a like number of the country’s biggest companies had asked the court to settle the issue for the nation.

With same-sex marriage, a similar situation may soon exist, with one important caveat: While public polls at the time of Loving showed that the public was still opposed to interracial marriage, public support for same-sex marriage has dramatically increased, especially among the young.

 Leaders in what remain anti-gay marriage states truly are going to need to think about where they take their states from here.  If they don't embrace marriage equality now, then it may ultimately be forced on them by the Supreme Court.  Meanwhile economic development staffs are going to face a real problem as more and more businesses full embrace same sex marriage and find anti-gay states less and less palatable places in which to do business.