A Punt, But For How Long?

Today the Supreme Court punted on the basic question of whether there is a constitutional right to same-sex marriage. But I doubt it will be long before the issue comes back to them. There’s lots of language in Windsor strongly hinting that a majority of the current Court would (eventually) hold that such a right exists. New suits will be filed in many states pretty soon, both in federal court and state court. I suspect most trial judges will treat the issue as one of law rather than as one of fact (contra Vaughn Walker), leading to pretty quick initial decisions. Red states will defend their laws on appeal, solving the standing problem. And the four liberal Justices can get cert granted in any of the cases if they think Kennedy is ready. So the issue may be back on the Supreme Court’s docket in just a few years. And at least based on Windsor, it seems more likely than not that the votes will be there (assuming no change in personnel) to hold that there is a constitutional right to same-sex marriage.