Chemerinsky: SCOTUS "backing into recognizing a constitutional right to marriage equality."

If you were awake at all yesterday, you likely heard that SCOTUS declined to consider five states' appeals of lower court decisions striking down their same-sex marriage bans. Instantaneously, the fundamental right to marry extended to include same-sex couples in 24 states - which merits excitement and celebration. Nevertheless, SCOTUS's decision is also completely inadequate to address the continued discrimination against same-sex couples in the remaining states. 

UC Irvine School of Law Dean Erwin Chemerinsky sees SCOTUS's decision for what it ultimately is -- pretty weak sauce. Chemerinsky writes:

[I]t is inexplicable why the Supreme Court did not take at least one of these cases and then rule for the entire country that laws prohibiting same sex marriage are unconstitutional. In all likelihood, the court denied review because, so far, there is no disagreement among the federal courts of appeals; all three to rule so far have declared the state laws unconstitutional. It appears that the court will wait until a federal court of appeals decides the other way and upholds a state law prohibiting marriage equality.

 

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However, it is hard to understand what the Supreme Court gains by waiting to decide this constitutional issue. It is not a situation where the court will benefit from the wisdom of the lower courts. It is very unlikely that an additional court of appeals will say anything that has not already been expressed.

 

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It seems that the court is backing into recognizing a constitutional right to marriage equality. The more that marriage equality exists in the United States – the more states that have same-sex marriage and the more gay and lesbian couples that marry – the harder it will be for the court to deny such a right and invalidate these marriages.

 

But that is not how the court should be making landmark decisions. It now seems inevitable that there will be a right to marriage equality everywhere in the United States. There is no reason for the court to delay this. The court abdicated its responsibility when it denied the marriage cases instead of taking one and clearly and unequivocally holding that laws denying marriage equality violate the Constitution. 

Indeed, just what this issue demands -- more litigation.