By Michael C. Dorf
Since the Supreme Court’s 2013 decision in United States v. Windsor, invalidating Section 3 of the Defense of Marriage Act, a clear majority of lower courts to hear challenges to state laws forbidding same-sex marriage have found for the plaintiffs. Some state executive officials—like those in New Jersey and Pennsylvania—graciously accepted defeat and did not appeal. Some—like those in Virginia—saw the light and became vigorous advocates for the rights of their gay and lesbian citizens.
But other state officials sought relief in the highest court in the land. They asked the Justices to stay the orders that allowed same-sex marriages to go forward, claiming, inter alia, that if the Court were ultimately to rule against a right to same-sex marriage, it would be very difficult to unwind the marriages that occurred in the interim. Last fall, the Court denied the stay applications, thus sending a very clear signal that at least five Justices intended to recognize a right to same-sex marriage when the issue came before them.
And now the issue is before the high Court. In light of the Court’s refusal to block the thousands of interim same-sex marriages, it is essentially a foregone conclusion that the plaintiffs will prevail in the cases consolidated under the caption Obergefell v. Hodges. The remaining question is how the Court will reach that conclusion.