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SCOTUS Did Not End the Legal Debate over Same-Sex Marriage

by David Yee, published

To be honest, I'm a bit surprised at today's Supreme Court ruling legalizing same-sex marriage throughout the United States.

Not in the outcome -- in my mind that was all but a foregone conclusion. But instead, in the way it played out.

I was banking on one of two things: a convoluted split-majority opinion that would force the issues to be fought out in the lower courts for more years to come while upholding current pro-rulings, or a unanimous decision in favor.

Obviously, the tactic of the convoluted decisions on same-sex marriage is nothing new; it's been the tactic of SCOTUS for at least a decade. For them to continue this path would be just maintaining the status quo, something the courts have always been especially good at.

But on pressing civil rights decisions, especially landmark decisions, justices don't like to have their legacy "on the wrong side of history."

Decisions like Brown v. Board of Education of Topeka (1954) were far from universally endorsed by the justices at first, but the court realized that such a landmark ruling would need unanimous consent to make it stick (as well as the "wrong side of history" issues).

Brown was heard by the Supreme Court twice, an unusual event -- and then Chief Justice Warren kept circulating majority opinions that were revised until everyone could sign on.

Today's decision is different, because it falls largely along ideological lines, and those ideological lines represent about a 50/50 (maybe a 60/40 in favor) split in American opinion.

Yes, support of same-sex marriage is increasing, but it is far from universal in agreement -- one way or the other.

This is where SCOTUS made its error. The court is now going to be a political target for the 2016 election and implementation of same-sex marriage will probably continue to be fought out in the courts at every stage.

It's not like there isn't already a huge faction of Americans, especially conservatives, who believe the courts overstep their authority "by legislating from the bench." A non-unanimous decision fuels this opinion, and keeps alive the divide.

Also, without a unanimous opinion, the idea of a "glimmer of hope" remains where there will be challenges against the implementation of same-sex marriage at every stage, from bakers refusing to make cakes to churches refusing to accept lawful marriages. It's going to be endless.

In many ways, I feel that today's decision was the worst of the two paths. A convoluted decision would have given America more time to increase its acceptance of same-sex marriage, while also giving the courts more time to build unanimous consent.

But SCOTUS has the final word on judicial matters, and while same-sex marriage is now a reality nationwide, we are still far from over hearing about court cases involving it.

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