Same-sex marriage just became legal in Utah. And Oklahoma. And a bunch of other seemingly unlikely places.
This morning, the Supreme Court denied review of several closely-watched cases in which same-sex marriage had been declared legal despite state laws banning it. In each of the cases, the lower court order legalizing same-sex marriage was on hold pending the Supreme Court’s decision whether to take up the issue. Now that the Supreme Court has refused to weigh in, the lower court orders go into effect, and same-sex marriage is now legal (or soon will be as soon as some technicalities are resolved) in all states encompassed by the three federal appeals court circuits (the 4th, 7th, and 10th) whose orders were at issue.
According to the pro-marriage equality group Freedom To Marry, today’s events will result in same-sex marriage becoming legal in 30 states encompassing roughly 60% of the American population. Per the same group, the states that can now expect to see marriage equality in short order despite state laws banning it are: Colorado, Kansas, Oklahoma, Utah, Wyoming, North Carolina, South Carolina, Virginia, West Virginia, Indiana, and Wisconsin.
The Supreme Court may well still weigh in – there are marriage cases pending before a couple of other federal appeals courts, and they could come out the other way, which would pretty much require the Supreme Court to resolve the conflict. But what happened today makes it much more likely that, fairly soon, same-sex marriage will be legal nationwide.
Why? Think about it this way. Four votes are required for the Supreme Court to take a case. That means that, if they wanted to, the “conservative” Justices – Roberts, Scalia, Thomas, and Alito – could have required the Court to accept any of these cases.
But they didn’t. Probably, they didn’t because they don’t think they have the five votes needed for the case to come out the way they want it to, which means they think Justice Kennedy is prepared to recognize a constitutional right for same-sex couples to marry.
And, as a practical matter, the Court’s action today means that, by the time the case does finally arrive at the Supreme Court (if it ever does), thousands of same-sex couples in the 10 states listed above will be married, will have kids, will have gotten their affairs in order based on the lower courts’ actions permitting them marry legally. Undoing those arrangements would be terribly disruptive, and would bring the Supreme Court’s already somewhat shaky public reputation into further question. Honestly, I don’t see it happening.
A lot of this is tea-leaf reading, which is notoriously hazardous when it comes to the Supreme Court. But one thing is clear: a whole lot more people just got marriage rights today. And that’s an unalloyed good thing.
Perhaps suggesting they’re not as sure about Kennedy or don’t want a narrow decision messing up what the Courts of Appeals have done. We’ll have to keep an eye on the 5th Circuit, where “Judge BP” has bucked the trend and ruled against marriage equality in federal district court, but a state judge has gone the other way. Maybe it ends up in DC if there’s a circuit split.
is that they are content for the lower court rulings to take effect, banking (I think correctly) that with people in that many states getting married and reordering their affairs, and with states and the federal government putting machinery in place to deal with it, the momentum will be essentially irreversible by the time the Court has another chance to take it up.
Certainly, a circuit split now seems the most likely route to SCOTUS. That depends on what happens in the 5th or 6th circuit, where cases are now working their way up. But even absent a split, it would be somewhat surprising for an issue of this magnitude to be resolved by the courts of appeals, even if they are unanimous.
I wasn’t saying anything much different, just that the way things are going those four justices didn’t want to force the issue yet even though their votes would have been enough for cert. I think it will end up at the Supreme Court one day for certain: as soon as there’s a circuit split or, if one never develops, once the last circuit has joined the unanimous chorus.
It makes the 2016 election very important: I shudder to think of winning in every circuit just to see another justice (cough, Ginsburg, cough) replaced by a right-winger and we get another 5-4 decision for the reactionary side.
The stakes could hardly be higher.
People are already marrying in several of those states. The AG of VA recently posted this: https://twitter.com/AGMarkHerring/status/519171570938687488
And, of course, that amendment had nothing to do with marriage rights. Does this mean that every same sex couple not allowed to marry prior to 2003 when Goodridge was decided and the nation started to follow a more pro-marriage view, were denied their constitutional rights?
…but I don’t understand the reference to a constitutional amendment about legislative pay.
That if the constitution protects this right, and it isn’t because it’s been amended specifically to do so, then the right must have been constitutionally protected all along. And people were denied it, to say the least, all those years. But that’s the thing with constitutional law: These provisions are sufficiently vague that the details of their interpretation has evolved with societal views over time. In 1896 equal protection and segregation were held to be consistent. By 1954 they weren’t. The meaning of the word equal didn’t change. Our willingness to apply it to those circumstances did.
if thousands of same-sex couples in these states get married and the US Supreme Court later rules that states have the right to ban gay marriage? What would the impact be on couples who were already married? I just wouldn’t put it passed the Supreme Court to be blind to the implications of waiting until a later case (or cases) to rule on this issue.
This is really the $64,000 question in these cases.