U.S. Supreme Court

Will Supreme Court be swayed by a gay-marriage 'tipping point'?

  • Print.


Image from Shutterstock.

As the U.S. Supreme Court considers whether to hear a challenge to bans on gay marriage, some are pointing to a number.

No more than 15 states will have gay-marriage bans in place if the court takes up the question, and some suggest that number could play a factor, the New York Times reports.

In a brief urging the Supreme Court to accept an Ohio gay-marriage case, lawyers for gay couples pointed to the numbers in past cases involving marriage and gay rights, the story notes. When the Supreme Court struck down a ban on interracial marriage in 1967, only 16 states still had such bans in place. And when the court struck down a Texas law making gay sex a crime, only 13 states had such laws on the books.

In a New York Times interview, a former acting solicitor general, Walter Dellinger, said numbers appear to matter. “Historically, there seems to be a tipping point at which the justices seem more comfortable setting aside state practices,” he said. “When only a third of the states still retain a practice, the court seems ready to act.”

The story notes, however, that court decisions rather than legislative or voter action changed the numbers on same-sex marriage. “In the past two months,” the story says, “the number of states allowing same-sex marriage grew to 35 from 19, as well as the District of Columbia. The surge was entirely the result of court decisions.”

The story notes a Nov. 6 opinion by the federal appeals court that upheld a gay-marriage ban and created a split on gay marriage. “Freed of federal court intervention, 31 states would continue to define marriage the old-fashioned way,” Judge Jeffrey Sutton wrote in his opinion for the Cincinnati-based 6th U.S. Circuit Court of Appeals.

Give us feedback, share a story tip or update, or report an error.