So saith Adam Liptak in a news analysis piece in the New York Times today. As he writes, last June's decisions were very carefully calibrated:
The Supreme Court’s two decisions in June were finely balanced, with legal experts saying they had achieved the twin goals of advancing the cause of gay rights and avoiding a backlash in parts of the country not ready to embrace same-sex marriage.But it hasn't worked. In June, 9 states and the District of Columbia embraced marriage equality; today, just six months later, the count is now 17, with challenges coming from Utah and Ohio.
How this has worked, with analysis from the pundits who thought this had been put to bed for a while, below the great orange wedding bouquet.
First, we have Professor Michael Dorf from Cornell Law School:
“If the court thought it was going to get a few years, I think they were naïve.”Dorf, of course, thinks that the lower court and the 10th Circuit should have issued a stay. Now that several hundred couples have been married in Utah, that seems more moot than the several hundred couples San Francisco married in 2004.
Professor Dorf said there are probably not five votes on the Supreme Court to block Judge Shelby’s ruling. “On the strictly legal argument,” he said, “it’s hard to justify granting a stay.”"Would rather." What a pity they're being rushed. Liptak doesn't see this as an issue for this term, but sees it for the session that begins in October 2015 (which is what I've been saying) by which time that will be several thousand couples in Utah, not several hundred, and several hundred, no doubt, in Idaho and Colorado and Wyoming because Utah is closer than, say, New Mexico or Iowa.
But he added that the lower courts should have done so, partly because of the potential cruelty of voiding the new marriages and partly because the Supreme Court is hard to predict.
“It’s pretty clear that even the five justices who are sympathetic to same-sex marriage would rather take a few years before getting there,” Professor Dorf wrote in a blog post on Tuesday. “If their hand is forced, as it now will be, it’s impossible to say with certainty what they’ll do.”
And, yes, Liptak points out that the Utah decision was based on a sentence in Scalia's dissent on the Windsor case
“The view that this court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion”as GrafZeppelin127 and Kalil pointed out here when the decision was published, a gesture, that, as Liptak reports,
did not impress Jason Mazzone, a law professor at the University of Illinois. “His opinion would have appeared considerably more judicial had he resisted the urge to give Justice Scalia the finger,” Professor Mazzone wrote in a blog post last Friday.Well, okay!
But Michael Klarman, a historian at Harvard Law School, now thinks two to six years, even with the current composition of the court. He doesn't think it's open-ended any more.
So, Utah has set the wheels in motion for the endgame. Illinois, Oregon and New Jersey are in the pipeline now. Historically, this is a QUICK process, as we remember that Prop 8 was only five years ago. Of course, the Supreme Court COULD have done this sooner by accepting the Ninth Circuit's decision on Prop 8, a decision that is now lost to them, but I think I can wait a couple of years.
Now, our task is to change the composition of the House so we can get ENDA passed and signed.