While gay-rights advocates indisputably won decisive victories in each of the two blockbuster cases decided by the U.S. Supreme Court last week, one on the merits and the other via a backdoor, procedural ruling, one key question still remains. That’s the big enchilada: Can a state constitutionally ban same-sex marriage, as 37 currently do?
While the Court could have resolved that question in the Hollingsworth v. Perry case, which challenged the constitutionality of California’s Proposition 8, it didn’t. Instead, it found, 5-4, that the particular parties challenging the initiative at the appellate stage lacked “standing” to do so. (The nonruling left in place a lower court opinion that had invalidated Prop 8, handing California gay-rights advocates a statewide victory.)
Needless to say, there has been much speculation about what might have been, if the Court had reached the merits.