Why Does Everyone Want the Supreme Court to Take a Same-Sex Marriage Case?

Red and blue Americans agree on precious little, but there is one thing that seems to be on every politician’s Christmas list this season: Supreme Court review of a same-sex marriage case.

Everyone, it seems, is asking the Court to take on the issue. Proponents of same-sex marriage are confident that they now have the five votes they need to strike down prohibitions on same-sex marriage nationwide. It was for this reason that even the winners in the slew of federal appeals court decisions recognizing a right to same-sex marriage joined the losers in asking the Court to grant certiorari. For those who believe prohibitions on same-sex marriage to be a violation of fundamental constitutional principles, a victory at the Supreme Court will be the culminating moment in a long legal struggle.

But the more interesting recent development has been the support for Supreme Court review by those who claim to oppose a constitutional right to same-sex marriage. States that have seen their marriage bans struck down in federal district courts are bypassing available appeals and asking the Supreme Court to take their case. The winners in the recent Sixth Circuit case upholding same-sex marriage bans are joining the losers in asking for Supreme Court review.

What’s going on here? Surely the two sides cannot be equally confident of victory in the High Court. A more likely explanation is that opponents of same-sex marriage simply want the issue taken off their hands. There are ever-decreasing political benefits to be gained from arguing against same-sex these days. Most conservatives probably want the Supreme Court to take the issue and to strike down marriage bans, as they are sure to do, sooner or later. This will give opponents one more opportunity to attack the liberal wing of the Supreme Court (more political points to be scored there than by attacking gay rights), and it will remove from the political agenda an issue that is becoming a growing liability for conservatives. Thank you Supreme Court.

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