Near the end of his engaging and informative e-book on the Supreme Court’s recent same-sex marriage decisions, To Have and To Uphold, New York Times reporter Adam Liptak makes a prediction: “The day will come when the constitutional question [over the constitutionality of a ban on same-sex marriage] will return to the Supreme Court for some final mopping up, perhaps when the number of states still banning same-sex marriage has dwindled to a score or fewer.”
Though I agree with much of Liptak’s book, I think he’s wrong on this particular prediction: The constitutionality of bans on same-sex marriage will return to the Supreme Court sooner rather than later — and it will happen while more than a score of states still ban the practice. What the court does then is anyone’s guess.
There’s good historical precedent for Liptak’s prediction. Take the case of poll taxes, which required people to pay money (including back taxes) in order to be able to vote. The Supreme Court in 1937 upheld poll taxes, provided they were not applied in a racially discriminatory way. But states started doing away with them, and the country passed the 24th Amendment to ban them in federal elections.
When four states still used poll taxes in state elections, the Supreme Court in a 1966 case, Harper v. Virginia Board of Elections, held the practice unconstitutional. It was classic Liptakian “mopping up.”
That Harper decision was controversial, since the question was whether the court needed to get into the mop-up business in the first place. If history was inevitably moving in this direction, why is court interference necessary? Indeed, Harper started out as a case affirming the poll tax, but the case was set for reargument after Justice Arthur Goldberg wrote a blistering draft dissent and three other justices changed their minds over the constitutionality of the poll tax in the summer of 1966.