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Why Waiting on the States Could Create a Messy Future for Same-Sex Marriage

In two big cases, the Supreme Court was hesitant to impose a national standard on gay marriage. But history shows that leaving the issue to the states could leave a long-lasting patchwork.

Supporters of gay marriage carry signs in front of the Supreme Court in Washington, Wednesday, March 27, 2013. (National Journal)

Even with the usual caveats about reading too much into questioning at a Supreme Court hearing, the big takeaway from this week's oral arguments on gay marriage was the reluctance of several justices to impose a national standard on an issue that Americans have seriously debated for only a few years.

The questioning during the case concerning California's Proposition 8, which overturned a state Supreme Court ruling authorizing gay marriage, suggests the Court is hesitant to prevent states from going their own way on same-sex marriage. That raises big questions about how much divergence in state law Americans are comfortable accepting on such a fundamental question — and whether the hyper-connected system of modern communications and politics has made it more difficult for states to sustain such differing approaches.

Gay marriage has advanced rapidly since the Massachusetts Supreme Court authorized it there in 2003. Nine states, along with the District of Columbia, now permit gay marriage. Illinois, New Jersey, and Rhode Island (each of which have already established civil unions) as well as Minnesota could join them relatively soon. If the Supreme Court doesn't restore gay marriage in California by effectively invalidating Proposition 8, polls show a clear majority of voters there are ready to approve it.

The catch is that all of these are blue states that have voted Democratic in at least five of the past six presidential elections. In Republican-leaning red states, which uniformly have banned gay marriage, few seem to be having second thoughts. For the near future, the nation appears locked onto a trajectory in which almost all reliably blue states will establish gay marriage (or civil unions) and possibly not a single reliably red state will follow.

Even some liberal justices this week appeared wary of preempting this sorting out. "If the issue is letting the states experiment and letting the society have more time to figure out its direction, why is taking a case now the answer?" asked Justice Sonia Sotomayor.

That approach could mean a longer-lasting patchwork on gay marriage than many now imagine. In the absence of national rules from Congress or the Supreme Court, the country often has let "the states experiment" with inimical courses for a very long time on questions at least as weighty.

The most obvious is slavery, which existed in the South until the Civil War ended it almost nine decades after Vermont first banned the practice in its colonial constitution. After the war, Tennessee in 1882 ignited a burst of laws across the South mandating racial segregation. Even after the Supreme Court upheld these "separate but equal" laws in its 1896 Plessy v. Ferguson decision, few jurisdictions outside of the South followed: By 1915, the movement for legal segregation had already crested "somewhere south of Wilmington [Del.] and east of Oklahoma City," as Joel Williamson wrote in his book The Crucible of Race. Yet, even as most states spurned segregation, the South defiantly maintained it until Congress intervened with the 1964 Civil Rights Act.

On interracial marriage, the state chasm endured even longer. The first laws banning it trace back to the 1600s (in Maryland and Virginia), and the states decisively split in 1780 when Pennsylvania became the first to repeal its prohibition. Yet the U.S. Supreme Court didn't ban all such miscegenation laws until 1967, at which point 16 states still had them on the books.

Not only racial issues have durably divided the states. All states didn't mandate compulsory education until 1918, 66 years after the first one (Massachusetts) did. Congress didn't establish the federal minimum wage until 1938, a quarter century after Massachusetts established the first one for women and children.

Looking forward, a key question on gay marriage is whether the intensity of modern media and communications makes such disparities among the states less tenable. The dawn of television hastened segregation's demise; it seems dubious that its daily indignities could have survived as long amid 24-hour cable and viral videos. (Imagine enforcing back-of-the-bus rules against people filming iPhone videos that might reach CNN in hours.) Today, the increasingly positive images of gay men and women in the popular culture blanketing all regions probably help explain the growing public support for same-sex rights, including marriage.

Yet no one should underestimate the barriers to convergence. As more states tilt toward one or the other party, state policy is polarizing across many issues, from abortion to health care. Despite the overall increase in support, only one-fourth of Republicans and one-fifth of white evangelical Christians backed gay marriage in the latest Pew Research Center polling, up little from 2003. As a result, culturally conservative states dominated by those voters probably won't lift same-sex marriage bans soon, even if future GOP candidates in blue states that have permitted the institution are likely to increasingly accept those decisions.

The arc of American history bends irreversibly toward inclusion of previously marginalized groups, which means that greater equality for gays is inevitable. But the justices are waiting for a cavalry that won't arrive if they are hoping that the states will establish a common set of rules for same-sex marriage before the Court itself must act.