But until a law is actually passed that counters the law in place, the unconstitutional law is still the law, and the only thing you have is a decision, not an actual law.
States that passed gay marriage legislatively have an actual law changing the marriage contract. Until other states do that, they have no law endorsing gay marriage as legal, all they have is a (wrong) court decision declaring the law "unconstitutional"
Court cases have only eliminated bans on same gender marriages.
For example- in California, before there was Prop 8, there was Prop 22- which changed State law to forbid 'gay marriage'- that was struck down as a violation of the California Constitution. So my fellow Californians changed the State Constitution to forbid 'gay marriage'. That was struck down by a Federal Court, and that decision was left standing by the U.S. Supreme Court.
There is no need for a law to 'legalize' gay marriage in California- because Prop 22 and Prop 8 are null and void- which means that marriage is based on the law that is not null and void. And that law- on the books- doesn't prohibit gay marriage.
But gay marriage is not the "law of the land" there. Being struck down does not repeal the law. Both are still on the books, and both are still law, but unenforceable.
If the SC says States can set the marriage contract as they see fit, all the laws on the books come right back into play.
Agreed- at this point marriage equality only exists in 36 states- and just like the laws against mixed race marriages and sodomy, until the Supreme Court ruled that didn't apply to all states.
And I agree- if the Supreme Court does decide that State prohibitions against gay marriage do not violate the constitution- then it will reverse the judges decisions that overturned those laws(all except Prop 8- that has already been decided by the Supreme Court).
But if the SC says the States have to follow the Constitution- then like laws against mixed race marriages and laws against sodomy- those laws will be on the books for years- likely for decades before being repealed.
Alabama didn't repeal its mixed race marriage ban for 32 years after the Supreme Court found the State couldn't set the marriage contract as Virginia saw fit.