In a move that may signal the inevitability of a nationwide right to same-sex marriage, the Supreme Court on Monday let stand appeals court rulings allowing such unions in five states…
The decision to let the appeals court rulings stand, which came without explanation in a series of brief orders, will almost immediately increase the number of states allowing same-sex marriage from 19 to 24, along with the District of Columbia. The impact of the move will in short order be even broader…
There may then be no turning back, said Walter E. Dellinger III, who was an acting United States solicitor general in the Clinton administration.
“The more liberal justices have been reluctant to press this issue to an up-or-down vote until more of the country experiences gay marriage,” he said. “Once a substantial part of the country has experienced gay marriage, then the court will be more willing to finish the job.”
The cases that had been under consideration included those from three federal appeals courts:
• A three-judge panel of the U.S. Court of Appeals for the 10th Circuit ruled 2-1 in June and July that same-sex couples in Utah and Oklahoma have “the same fundamental right” to marry as heterosexuals.
• A three-judge panel of the U.S. Court of Appeals for the 4th Circuit ruled 2-1 in July that gay men and lesbians have a constitutional right to marry that is paramount to state marriage laws.
• A three-judge panel of the U.S. Court of Appeals for the 7th Circuit declared unanimously last month that gay marriage bans in Indiana and Wisconsin threaten “the welfare of American children.”
Justice Ruth Bader Ginsburg gave us a bit of insight into the court’s thinking last month at a speech in Minnesota. She essentially said that without a disagreement on the issue from lower courts — a “circuit split,” in Supreme Court parlance — the court was unlikely to jump in now. A ruling upholding a state ban on same-sex marriage, Justice Ginsburg said, might prompt “some urgency” on the part of the court. Without a split, she added, “there is no need to rush.” Cases are currently pending at the Fifth Circuit in New Orleans and Sixth Circuit in Cincinnati.
But the Supreme Court’s decision on Monday “lets the whole chaos stand for a while,” said John Eastman, the chairman of the National Organization for Marriage, which opposes same-sex marriage.
The move is unexpected and somewhat bizarre. Most court-watchers, including me, assumed the justices would wait to make a move on gay marriage until a circuit court ruled that state-level marriage bans were constitutional, swimming against the tide. At that point, the Supreme Court would be presented with a circuit split, essentially forcing it to wade in. And since the 6th Circuit seems poised to rule in favor of anti-gay-marriage laws, the justices probably would not have had to wait long…
There is one other possibility here. If no circuit court ever rules against gay marriage, the gay marriage question will be effectively settled, and the Supreme Court will never have to wade in again. It may be that the justices are hoping the lower courts rule uniformly on the issue—thereby making United States v. Windsor stand for a fundamental constitutional right for gay couples to marry. The tea leaves, at this point, remain hazy. But the court’s startling decision today suggests that no option is off the table.
I have thought ever since Windsor that any careful analysis of the Supreme Court precedent would lead any federal circuit to strike down the same-sex marriage bans. The uniformity we tend to think of as coming from the Supreme Court can come from unanimity among the circuits (after the nudge in Windsor).
Some people might want to get the answer nailed down for the whole country as soon as possible, but I’m guessing that the view on the Supreme Court is that things are already happening quickly and giving people a little more time to adjust — to evolve, as many like to say — is really more effective than a top-down dictate from the Court — which would give marriage equality opponents much more to cry out about.
And really, rejecting these cases, is almost a clearer announcement that issue is over. Unless some circuit court decides to resist the compulsion of Windsor, at some point we will all look back and see that it was really already decided last year.
When will the Supreme Court decide the same-sex marriage question? The answer is probably: Never. Or: It already did.
Accordingly, for the Court to grant cert, we would require, probably, a negative holding at the Sixth Circuit (which had oral arguments recently) or the Fifth Circuit (briefing ongoing) circuits. If those fail, there could be litigation and appeal in the Eighth Circuit which could vote to uphold Bruning. The remaining circuits have already ruled or consist of majority Democratic appointees who can force a rehearing en banc if an anti-marriage panel in their Circuit hears the case (Democratic appointees have, so far, proved reliably pro marriage). A further prediction (which I make with some confidence since few will ever know if it turns out to be correct)—if there is a post-Windsor split, it will be the liberal wing of the Court that votes to grant certiorari. The conservative wing, I suspect, would prefer to avoid granting certiorari even then—they anticipate, I think correctly, the Justice Kennedy will uphold marriage equality; denying certiorari even if there is a post-Windsor split will ensure that in least some circuits, marriage equality is not realized. The good news for all sides who want us up at the Court was that, according to some at least, oral arguments at the 6th Circuit didn’t seem to go well for marriage advocates—so the story is far from over.
What is fascinating though, is the cultural shift—by effectively ushering in marriage in 11 additional states, the dismissal (which requires some complicity by the conservative wing of the Court) also suggests that sanctioning same-sex marriage, by itself, is not a sufficiently important question on which to grant cert. These first signs of the normalization of marriage equality, perhaps, more than a win, may be the real victory.
The U.S. Supreme Court’s decision Monday to decline hearing a series of appeals cases on same-sex marriage will have the effect of immediately legalizing gay marriage in Indiana, Oklahoma, Utah, Virginia and Wisconsin. When combined with the 19 states (and the District of Columbia) that had previously legalized same-sex marriage, these states have a collective population of roughly 165 million, according to 2013 census figures.
That means for the first time, same-sex marriage is legal for the majority of the U.S. population. The 26 states where the practice is not legal have a total population of about 151 million.
The Supreme Court’s decision may also lead to the legalization of same-sex marriage in Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming. Those states have an additional 25 million people combined. If they follow suit, 30 states and the District, totaling about 60 percent of the U.S. population, would allow same-sex marriage.
What I also love about this conservative but extraordinary decision from SCOTUS is that it affirms the power of federalism against the alternatives. Marriage equality will not have been prematurely foisted on the country by one single decision; it will have emerged and taken root because it slowly gained democratic legitimacy, from state to state, because the legal and constitutional arguments slowly won in the court of public opinion, and because an experiment in one state, Massachusetts, and then others, helped persuade the sincere skeptics that the unintended consequences were, in fact, the strengthening of families, not their weakening.
Those who wished to circumvent this process, to grab the credit, to condemn all those in dissent as ipso facto bigots, have mercifully been sidelined by the court. And now in thirty states, the reality of this social reform will be seen: the quotidian responsibilities of spouses and parents, the moments of joy and agony that are part of all marriages, the healing of wounds of separation and ostracism. It won’t happen at once, but it will slowly emerge, through a greater collective empathy and inclusion.
The following statement may be attributed to Brian S. Brown, president of the National Organization for Marriage (NOM):
“We are surprised and extremely disappointed that the US Supreme Court has refused to grant review of the same-sex marriage cases pending before them. This is wrong on so many levels. First, the entire idea that marriage can be redefined from the bench is illegitimate. Marriage is the union of one man and one woman; it has been this throughout the history of civilization and will remain this no matter what unelected judges say. Second, it’s mind-boggling that lower court judges would be allowed to impose the redefinition of marriage in these states, and our highest court would have nothing to say about it. Third, the effect of the lower court rulings is to say that a constitutional right to same-sex ‘marriage’ has existed in every state in the union since 1868 when the 14th Amendment was ratified, but somehow nobody noticed until quite recently. That’s the absurd belief we are being told to accept…
“We call upon Americans vigorously to contest this development by turning to the political process, starting with the upcoming mid-term elections. We urge voters to hold politicians accountable and demand to know if they will accept the illegitimate act of attempting to redefine marriage or whether they will stand with the American people to resist. In particular, we urge Republicans to hold their party leaders to account, and to demand that they remain true to their belief that marriage is the union of one man and one woman which was a pillar of the party’s founding in 1856, and remains essential to society’s well-being today.
Citizens are, of course, free to redefine marriage to include same-sex relationships, but so too should citizens be free to retain the historic definition of marriage as the union of a man and a woman—as citizens in a majority of states have done. Nothing less than the future of our society and the course of constitutional government in the United States are at stake.
No one can say for certain why the Supreme Court declined to review these cases. Perhaps it is because it is waiting for the 6th Circuit Court to rule on Ohio and Michigan’s marriage laws (a ruling that even many who favor redefining marriage think will uphold those state laws) or perhaps because it is waiting on the 5th Circuit Court to rule on Texas’ and Louisiana’s laws (a federal judge recently upheld Louisiana’s law). Who knows?
Declining to review these cases does not speak one way or the other to the merits of the cases. But it does leave in place bad rulings from lower courts—and it will make it harder for courts to do the right thing in the future.
“The Supreme Court’s decision to let rulings by lower court judges stand that redefine marriage is both tragic and indefensible,” said Sen. Cruz. “By refusing to rule if the States can define marriage, the Supreme Court is abdicating its duty to uphold the Constitution. The fact that the Supreme Court Justices, without providing any explanation whatsoever, have permitted lower courts to strike down so many state marriage laws is astonishing…
“The Supreme Court is, de facto, applying an extremely broad interpretation to the 14th Amendment without saying a word – an action that is likely to have far-reaching consequences. Because of the Court’s decision today, 11 States will likely now be forced to legalize same-sex marriage: Virginia, Indiana, Wisconsin, Oklahoma, Utah, North Carolina, South Carolina, West Virginia, Kansas, Colorado, and Wyoming. And this action paves the way for laws prohibiting same-sex marriage to be overturned in any state…
“Nothing in the text, logic, structure, or original understanding of the 14th Amendment or any other constitutional provision authorizes judges to redefine marriage for the Nation. It is for the elected representatives of the People to make the laws of marriage, acting on the basis of their own constitutional authority, and protecting it, if necessary, from usurpation by the courts.
“Marriage is a question for the States. That is why I have introduced legislation, S. 2024, to protect the authority of state legislatures to define marriage. And that is why, when Congress returns to session, I will be introducing a constitutional amendment to prevent the federal government or the courts from attacking or striking down state marriage laws.”