Laws banning marriage for same-sex couples in Kentucky, Michigan, Ohio and Tennessee are perfectly legal under the federal Constitution. So said a federal appeals court in a recent divided ruling that is likely headed to the U.S. Supreme Court.
Social conservatives hailed the decision. But turning back the clock on marriage equality is hardly a conservative position any more.
Yes, the court couched its decision in the language of judicial restraint, saying that popular majorities rather than unelected judges should decide whether same-sex couples have the same right to marry as opposite-sex couples. And not so long ago, that might have passed as the conservative case for preserving the status quo.
Not so any more. Since the Supreme Court ruled the Defense of Marriage Act unconstitutional last year, over 50 state and federal judges -- both Democrats and Republicans -- have struck down same-sex marriage bans in dozens of states, embracing their traditional constitutional role to protect the rights of minorities from the whims of the majority. And in October, the Supreme Court let stand decisions from four federal appeals courts striking down several voter-enacted marriage bans.
As a result, gay couples can now legally tie the knot in at least thirty 35 states and counting, covering more than 60 percent of the U.S. population. Since Massachusetts started the ball rolling a decade ago, more than 100,000 same-sex couples have legally married and are raising more than 30,000 children. It's hard to imagine the Supreme Court stopping that ball now and re-engineering a future where thousands of these legal marriages will be undone -- or same-sex couples and their children will lose established parental and property rights when they take a family vacation, move for a new job, or get transferred by the military, to a non-equality state.