WASHINGTON — The victories for same-sex marriage on Tuesday, the first ones achieved at the ballot box rather than through courts or legislatures, are evidence of a remarkable shift in public opinion.
They are also exceptionally timely data points for the Supreme Court.
At their private conference scheduled for Nov. 20, the justices plan to consider some 10 requests that they address various aspects of what the Constitution has to say about same-sex marriage. It is close to certain that the court will agree to hear at least one case on the subject, with a decision expected by June.
The justices tend to say they are not influenced by public opinion. But they do sometimes take account of state-by-state trends, and the latest developments will not escape their notice.
On Tuesday, Maine and Maryland became the first states to embrace same-sex marriage through direct democracy, and Washington State seems poised to follow once all of the votes there are counted. Voters in Minnesota, which continues to bar same-sex marriage, rejected an attempt to withdraw the subject from democratic debate and judicial scrutiny through a state constitutional amendment.
“I would guess that 50 years from now, the high school civics books will treat Nov. 6, 2012, as a red-letter day in the history of the gay rights movement,” said Michael J. Klarman, a law professor and historian at Harvard. Assuming Washington follows Maine and Maryland, he added, “The number of states with gay marriage increased by 50 percent overnight.”
But it is not clear which side benefited more from those developments at the Supreme Court.
Supporters of traditional marriage, even as they registered disappointment, said the results showed that the question could be resolved democratically.
“It bolsters our case,” said Brian S. Brown, the president of the National Organization for Marriage. “It’s very difficult to say you need a federal resolution of this question if states are resolving it for themselves.”
Adam Umhoefer, the executive director of the American Foundation for Equal Rights, the group behind a California caseseeking to establish a constitutional right to same-sex marriage, expressed mixed feelings about the developments. They were, he said, the right outcomes in the wrong forums.
“Fundamental constitutional rights like marriage,” he said, “should never be subjected to a popular vote.”
Other advocates for same-sex marriage were making more subtle calculations.
Social justice movements, said Evan Wolfson, the president of Freedom to Marry, must eventually give rise to a national resolution. The question, he said, is timing.
“We now have irrefutable momentum,” he said. Beyond that, though, one important benchmark, the Supreme Court’s 1967 decision in Loving v. Virginia, provides mixed signals. The decision, which was unanimous, struck down bans on interracial marriage fairly late in the day, at a time when only 16 states still barred such unions.
By that measure, Mr. Wolfson said, “even with our wins last night, we still have work to do.” On the other hand, he said, some 70 percent of Americans opposed interracial marriage in 1967, while recent polls show that a majority of Americans support same-sex marriage. The situation, then, he said, is at once more and less favorable than the one in 1967.
Dale Carpenter, a law professor at the University of Minnesota who opposed the proposed constitutional amendment, said supporters of same-sex marriage had reason to be wary of a Supreme Court decision on whether the Constitution requires it.
“This looks like increasing momentum for same-sex marriage,” he said of Tuesday’s developments, “but I’ve got to say it’s still 41 to 9. It’s been pretty rare for the court to take on 41 states.”
At their private conference, the justices may agree to hear the California case, Hollingsworth v. Perry. But they need not decide it on broad grounds if they do. Indeed, the appeals court in the case gave the justices a legal road map for requiring same-sex marriage in California but not the rest of the nation. The Supreme Court could also sidestep or defer consideration of the case.
But the justices will almost certainly agree to decide one or more cases about a narrower question: whether the federal Defense of Marriage Act is constitutional. Two federal appeals courts have struck down the part of the law that requires the federal government to deny benefits to same-sex couples married in states that allow such unions. The Supreme Court almost always reviews decisions in which lower courts invalidate federal laws.
One aspect of Tuesday’s results may hurt the cause of same-sex marriage in the courts, which sometimes insist on more searching judicial scrutiny of the justifications for measures that discriminate against politically powerless minorities than of those for ordinary legislation. That was a theme, though a minor one, of the decision last month from the federal appeals court in New York striking down the federal marriage law.
“Homosexuals are not in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public,” Chief Judge Dennis Jacobs wrote for the majority of a divided three-judge panel.
Justice Anthony M. Kennedy is thought to hold the crucial vote in gay rights cases, and he wrote the majority opinions inLawrence v. Texas, a 2003 decision that struck down a Texas law making gay sex a crime, and in Romer v. Evans, a 1996 decision that struck down a Colorado constitutional amendment that banned the passage of laws protecting gay men and lesbians.
Professor Klarman said that it “seems plausible” that support for same-sex marriage at the polls “would influence the view of a justice like Anthony Kennedy, who clearly is influenced by ‘evolving social mores’ in his constitutional interpretations.”
As Justice Kennedy considers how to approach same-sex marriage, Mr. Wolfson said, he may have one eye on history.
“Do you want to be Plessy or Brown?” Mr. Wolfson asked, referring to Plessy
v. Ferguson, the 1896 decision that said “separate but equal” facilities
were constitutional, and Brown
v. Board of Education, the 1954 decision that said otherwise.