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Inaction of justices reflects penchant for gradual change

WASHINGTON — The Supreme Court's surprising move to pass on deciding whether state prohibitions on same-sex marriage violate the U.S. Constitution likely reflects two things about the justices: a natural inclination for incremental change and a worry on the part of conservatives that the battle — for now — appears lost.

Many observers of the court were stunned that justices passed up reviewing lower court decisions that overturned prohibitions on same-sex marriage in five states, delaying a decision that would answer the question for the nation.

Gay rights proponents took it as a sign that the court likes to move slowly when endorsing momentous societal change, that it feels no need to decide an issue before it has to — and that the court's move provides a clear signal for future challenges of voter-approved prohibitions on same-sex marriage.

"An action like this is profound," said Mary Bonauto, a lawyer with Gay & Lesbian Advocates & Defenders. "I expect that lower courts will get the message."

The Williams Institute at UCLA estimates that when the rollout is complete, 65 percent of gay couples and a majority of all Americans will live in a place where same-sex unions are legal.

To some, it seems impossible that that fact would have escaped the attention of the justices.

The news that the Supreme Court would not review constitutional decisions from federal appeals courts in Denver, Richmond and Chicago came in a most inauspicious way. It was buried in an 81-page list of cases the justices had rejected, with no explanation or recorded dissent.

"There is no way to know why the court did what it did," said Jim Campbell, a senior attorney for Alliance Defending Freedom, a conservative legal organization defending the state bans. "The issue is still whether people in America can continue to define marriage as between a man and a woman."

There was enormous pressure on the court to take the case. Both the winners and losers in all five states had urged the court to get involved.

It is hard not to think about Monday's action without also remembering two other controversial decisions.

One was the court's decision in Loving vs. Virginia, in which it struck down state bans on interracial marriage in 1967. Demonstrating the same preference for incremental change it is showing in the same-sex marriage debate, the justices waited until such bans were pretty much a relic, confined to 16 states mostly in one region of the country. The court passed up several opportunities to step in.

The other decision is Roe vs. Wade. Justice Ruth Bader Ginsburg for years has said that the sweeping decision in the case hardened opposition to abortion by making it a national issue. She acknowledges that several studies have seriously questioned her premise, but she continues to hold that it was "too far, too fast."

Last month, Ginsburg surprised an audience by saying there was "no urgency" in addressing the marriage petitions at the court. The justices could confront the question if an appeals court upheld one of the bans, and set up an obvious split.

Some wondered whether Ginsburg had misspoken. It turns out she was serious.

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